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Judicia Brief Issue 4 En

Judicia Brief Issue 4 En

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Published by: STLebanon on Jan 27, 2014
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16 - 30 November 2013
Te Judicial Brief is a regular publication to highlight the judicial activities at the Special ribunal for Lebanon. It will be published every two weeks before trial starts. Tis brief is not an official ribunal document with legal authority. Rather, its purpose is limited to providing a periodical overview of public hearings and filings at the ribunal.
Issue
4
 Status of the
 Ayyash et al.
 Case
 A. Te Prosecutions proposed witness order for the first part of trial B. Prosecutions motion for the admission of written statements for the first section of trialC. Defence ResponsesD. Submissions of the Prosecution and Defence on the modalities of victim participation at trialE. rial Chambers decision authorising the Prosecution to amend its exhibit list and to redact exhibit 55F. Clarifications regarding the requested material from the Lebanese authorities G. Request and responses for reconsidering the Appeals Chamber’s decision ordering sanctions against counsel for Mr. Badreddine and Mr. Oneissi
ABLE OF CONENS
 Judicial Brief 
Dokter van der Stamstraat 1, 2265 BC Leidschendam, Netherlands

PO Box 115, 2260 AC Leidschendam, Netherlands.
For more informaon please contact the Public Informaon and Communicaons Secon: stl-pressoce@un.org Tel : +31 (0) 70 800 3560 / 3828 and +961 4 538 100 (Beirut)
 
Document provided by the Public Informaon and Communicaons Secon of the Special Tribunal for Lebanon.
2
Prosecutor v. Ayyash et al. (SL-11-01)
Status of the
 Ayyash et al.
Case
 A Te Prosecutions proposed witness order for the first part of trial
1
 the Prosecution put together a schedule of the anticipated  witnesses for the first part of the trial in the order of their intended appearance or reliance. Te notice states that the Prosecution seeks to rely on the evidence of 103 witnesses, including: 1 77 non-expert witnesses in respect of whom application has been made to admit their written statements 2 wo witnesses whom the Prosecution intends to call
viva voce
(i.e., give oral testimonies)3 One witness in respect of whom application will be made to admit his or her written statement based on medical grounds4 23 expert witnesses
B. Prosecution’s motion for the admission of  written statements for the first section of trial
On 20 November, the Prosecution filed a motion seeking to admit the evidence of 77 non-expert  witnesses in the form of written statements in accordance with Rule 155. Te Prosecution explains that the 100 statements of those witnesses are uncontroversial and reliable, and contain proof of matters other than the acts and conduct of the  Accused alleged in the indictment. Te Prosecution cites several factors in favour of admitting written statements such as a strong public interest in seeing the timely completion of trial. Te Prosecution further requests that the written statements be admitted without cross-examination.
C. Defence Responses
Te Ayyash Defence publicly filed a  response to the Prosecution’s motion, listing 29 written statements that counsel do not object to be admitted under Rule 155 and without cross-examining the
1 For more information on the rial Chamber’s 31 October 2013 decision, see Issue 2 of the Judicial Brief at http://www.stl-tsl.org/en/media/judicial-brief .
Te case relates to
the attack of 14 February 2005
 in
Beirut 
  which killed
 22 people
, including the former Lebanese Prime Minister,
Rafiq Hariri
, and
injured many others
.
 ACCUSED AND CHARGESMustafa Amine Badreddine
and
 Salim Jamil Ayyash:
 Conspiracy aimed at committing a terrorist act;
 Committing a terrorist act by means of an explosive device;
 Intentional homicide of Rafiq Hariri with premeditation by using explosive materials;
 Intentional homicide of 21 persons in addition to Rafiq Hariri with premeditation by using explosive materials;
 Attempted intentional homicide of 226 persons with premeditation by using explosive materials.
Hussein Hassan Oneissi
and
 Assad Hassan Sabra:
 Conspiracy aimed at committing a terrorist act;
 Being an accomplice to the felony of committing a terrorist act by means of an explosive device;
 Being an accomplice to the felony of intentional homicide of Rafiq Hariri and 21 others, and of the attempted intentional homicide of 226 persons with premeditation by using explosive materials.In reply to the Defence responses and Legal Representative of Victim’s observations, the Prosecution sought the withdrawal of the application of one of the 77 non-expert witnesses as three of the Defence teams are seeking to cross-examine the particular witness. Te Prosecution now proposes to call the witness viva voce. Tis brings the total number of Rule 155 witnesses to 76 who are intended to present 95 statements.
Prosecution reply 
 
Document provided by the Public Informaon and Communicaons Secon of the Special Tribunal for Lebanon.
3
corresponding witnesses. In relation to all other statements, the Ayyash Defence pleads that the Prosecution failed to show how and why these statements can be admitted into evidence by way of Rule 155. In contrast, the Badreddine Defence filed a response in which counsel do not object to the admission of the 86 statements of 69 out of the 77 non-expert witnesses.
D. Submissions of the Prosecution and Defence on the modalities of victim participation at trial
On 18 November, the Prosecution submitted a response to the observations of the Legal Representative of Victims (LRV) on the modalities of victim participation.
2
 Te Prosecution supports the LRV’s application for meaningful victim participation consistent with the SLs Statute and the Rules of Procedure and Evidence (RPE). In particular, the Prosecution is of the view that the LRV should be permitted to attend and participate in meetings and hearings related to the personal interests of participating victims, and they should be provided access to confidential filings that the rial Chamber deems appropriate. Tey should also be permitted to call witnesses and present other evidence upon a demonstration that such material relates to the personal interests of victims.  With respect to proofing witnesses, the Prosecution remarks that there is no legal requirement for the LRV to seek the permission of the rial Chamber to proof witnesses before they provide evidence. Counsel for Mr. Badreddine, Mr. Oneissi and Mr. Sabra submitted their joint views on 18 November, challenging three issues in the LRV’s submissions. First, the three Defence teams support a case-by-case (as opposed to a systematic) approach in the calling of witnesses by the LRV. Tis, counsel plead, would effectively allow victims to be called to the stand only after individual decisions based on the value and relevance of their proposed testimonies have been adopted. Second, Defence counsel observe that, subject to the oversight of the rial Chamber, the appropriate procedure for questioning Prosecution or Defence witnesses would be for the LRV to directly address the persons being examined. Te bulk of the Defence’s submissions focus on witness proofing. Drawing on the emerging jurisprudence of the International Criminal Court, counsel distinguish between witness preparation and familiarisation. Counsel argue that the latter is permissible on the condition that the Registry’s Victims and Witnesses Unit be exclusively responsible for carrying it out, whereas witness preparation is not, they claim. In the absence of any expressed provision in the RPE, the Defence teams assert that the Lebanese law that prohibits witness preparation should be enforced within the SL. Alternatively, the Defence requests the rial Chamber to put in place a protocol which would regulate witness preparation. Among other provisions, that would not allow that preparatory meetings be conducted 48 hours prior to the proposed testimony.
E. rial Chamber’s decision authorising the Prosecution to amend its exhibit list and to redact exhibit 55
On 10 September, the Prosecution requested the Pre-rial Judge (PJ) to add a witness statement (exhibit 55) to its Rule 91 exhibit list, and further sought authorisation to redact the proposed exhibit. Tis request was deferred to the rial Chamber upon the transfer of the case from the PJ. Exhibit 55 is the witness statement of a Prosecution staff member who compiled two photo-boards that allegedly include the faces of two of the Accused for use in the investigation. On 19 November, the rial Chamber authorized 
2 For the LRV’s observations, see Issue 3 of the Judicial Brief.
In a subsequent filing , the Prosecution requested leave to summarily dismiss the Defence relief about witness proofing, arguing that the submissions by counsel do not only address the LRV’s views as they seek a general order on not only victims, but all witnesses. Alternatively, the Prosecution requests leave to reply to the Defence response.  As per the jurisprudence of the International Criminal Court,
 witness preparation
 is defined as a meeting between a witness and the party calling her/him shortly before giving a testimony for the purposes of discussing matters related to a testimony.
 Witness preparation

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