Information Guide on Victim Participation in the Proceedings of the STL

8/6/2019 Information Guide on Victim Participation in the Proceedings of the STL

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STL Official Translation

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Drafted by Jrme de Hemptinne (Leal Officer)Published and printed by the Special Tribunal for Lebanon

Special Tribunal for Lebanon

Dokter van der Stamstraat 1

2265 BC Leidschendam

The Netherlands


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Contents

Foreword

Glossary of abbreviations and acronyms

I. About the STL _____

1. How was the Tribunal established?2. What categories of crime fall under the jurisdiction of the

Tribunal?

3. What are the stages in the proceedings before theTribunal?

II. Origins of victim participation_____________________

III. Definition of the concept of victim and victim participating

in the proceedings_______________________________

1. What is meant by a victim?2. What is meant by a victim participating in the

proceedings?

IV. The roles of the victim_____ ____

1. In what capacity can a victim appear before the Tribunal?2. Can a victim seek compensation before the Tribunal for

the harm he has suffered?

V. The rights of a victim____________________________

1. What are the rights of a victim participating in theproceedings during the investigation?

2. What are the rights of a victim participating in theproceedings during the trial?

3. What are the rights of a victim participating in theproceedings during sentencing?


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4. What are the rights of a victim participating in theproceedings during the appeals phase?

5. What are the rights of a victim participating in theproceedings in the event of a trial in absentia?

VI. Victim representation ____________________________

1. Does a victim have to be represented by a legalrepresentative?

2. Can a victim choose his own legal representative?3. Can several victims be represented by a common legal

representative?

4. Can a victim receive financial assistance to pay for hisrepresentation?VII. The Victims Participation Unit____________________

1. What are the roles of the Victims Participation Unit?2. How is the neutrality and independence of the Victims

Participation Unit guaranteed?

VIII. Arrangements for victim participation ____________

1. How are applications for participation submitted to theTribunal?

2. In what language(s) should the application forparticipation be submitted?

3. At what stage in the proceedings can a victim submit orwithdraw an application for participation?

4. Can a victim appeal a decision dismissing his applicationfor participation?

IX. Protection measures for victims____________________

1. How does the Tribunal ensure the protection of victims?2. What are the roles of the Victims and Witnesses Unit?


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Foreword

This guide presents an overall view, in question and answer format, ofthe status of victims and their rights in the proceedings at the Special

Tribunal for Lebanon. It is primarily intended for victims seeking to

understand the position they hold in the Special Tribunals proceedings.

It may also be of assistance to legal representatives of the victims

appearing before the Tribunal. Finally this guide aims to raise

awareness in civil society on the main issues surrounding the rights of

victims.

It sets out victim participation in nine chapters. After a brief summaryof the background to the establishment of the Tribunal and a

description of its jurisdiction together with the stages governing its

proceedings (I), it traces the origins of the system for participation at

the Tribunal (II). The guide then defines the concept of victim (III)

before examining his roles (IV) and rights in the proceedings (V),

together with the principles governing his representation (VI). It alsodescribes the role of the Victims Participation Unit (VII) and the

concrete arrangements for victim participation in the proceedings

(VIII). The guide concludes with some general considerations on thesubject of victim protection measures (IX).

In order for the reader to have a clearer picture of the underlying principles of the procedure, it is recommended that the Explanatory

Memorandum by the Tribunals President and the Procedure of the

Special Tribunal for Lebanon a snapshot be read in conjunction with

this guide.

The guide does not have any official, legal or interpretative status.

In this guide, for he, please read he/she.

The references in brackets and in italics in the headings refer to the

relevant provisions of the Agreement on the establishment of the

Tribunal, its Statute and Rules of Procedure and Evidence.


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The Rules, the Explanatory Memorandum and the Snapshot can be

found on the Tribunals website at: www.stl-tsl.org


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Glossary of abbreviations and acronyms

Agreement Agreement between the UN and theLebanese Republic on the establishment

of a Special Tribunal for Lebanon

Hariri Case The case involving the attack carried out

against former Prime Minister Rafiq

Hariri and others

Appeals Chamber Appeals Chamber of the Special Tribunal

Trial Chamber The Trial Chamber of the Tribunal

Security Council The UN Security Council

ICC International Criminal Court

Registrar Registrar of the Tribunal

Judge(s) Judge(s) at the Tribunal

Pre-Trial Judge Pre-Trial Judge of the Tribunal

UN United Nations

Parties Prosecution and Defence

Prosecutor Prosecutor of the Tribunal

RPE Rules of Procedure and Evidence

Secretary-General Secretary-General of the UN

Statute Statute of the Tribunal

Tribunal Special Tribunal for Lebanon

ad hoc Tribunals International Criminal Tribunals for the

former Yugoslavia and Rwanda and the

Special Court for Sierra Leone


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I. About the STL

1. How was the Tribunal established?

1. Following the attack against former Prime Minister RafiqHariri, on 13 December 2005 the Government of Lebanon requested

the UN to establish a tribunal of an international character. As a

result of that request, on 29 March 2006 the Security Council mandated

the Secretary-General to conduct negotiations with the Government of

Lebanon to establish such a tribunal (resolution 1664 (2005)). This

negotiating process culminated in the signing of the Agreement for theestablishment of the Tribunal, to which the Statute is attached, by the

Government of Lebanon and the UN on 23 January and 6 February2007 respectively. However, due to institutional impediments, the

Lebanese authorities were unable to ratify the Agreement.

2. In the light of this impasse and on the basis of the coercivepowers conferred upon it under Chapter VII of the Charter of the UN,

on 30 May 2007 the Security Council adopted resolution 1757 (2007),

bringing into force the provisions of the Agreement and the Statute, and

calling upon the Secretary-General, in concert with the Lebanese

authorities, to establish the Tribunal.

3. In accordance with resolution 1757, between June 2008 andFebruary 2009, the Secretary-General took the necessary measures for

the establishment of the Tribunal and, in particular, selected and

appointed, where applicable in consultation with the Lebanese

authorities, the Judges, the Prosecutor, the Head of the Defence Office

and the Registrar.

4. On 1 March 2009, the Tribunal, which is located inLeidschendam (the Netherlands), was officially opened. Three weekslater, on 20 March 2009, the Judges adopted the RPE, which govern the

structure and operation of the Special Tribunal, the Rules of Detentionand the Directive on the Assignment of Defence Counsel.


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2. What categories of crime fall under the jurisdiction of

the Tribunal (Articles 1(1) & 4(1) of the Statute & Rules 11,

12 & 17 of the RPE)

5. The Tribunals jurisdiction can be applied to three categoriesof crimes: the attack of 14 February 2005 against Rafiq Hariri

and others; other attacks which occurred between 1 October 2004 and

12 December 2005; and attacks which occurred on any later date.

i) The first category of crime namely the attack against RafiqHariri automatically falls under the Tribunals jurisdiction.

Indeed, within two months of the Prosecutor taking up his

post, the Tribunal shall request the Lebanese Court seized withtheHariri case to:

a) defer to its competence;b) hand over all the records relating to it; andc) submit a list of persons detained in connection with

the case.

ii) The second category of crimes shall fall within the jurisdictionof the Tribunal if two conditions are satisfied. Those crimesmust be:

a) connected with the attack carried out against RafiqHariri; and

b) of a nature and gravity similar to that attack.iii) The third category of crime shall fall within the jurisdiction of

the Tribunal if:

a) the two conditions set out in paragraph ii) above aremet; and

b) the UN and Lebanon have accepted the jurisdictionof the Tribunal with the consent of the Security

Council.


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3. What are the stages in the proceedings before the

Tribunal?

6. The proceedings in force at the Tribunal can be divided intoseven stages as shown in the diagram below: i) investigation;ii) confirmation of the indictment; iii) pre-trial phase; iv) first

appearance and plea; v) trial; vi) sentencing; and vii) appeal and

review. In addition, the Tribunal may conduct proceedings in absentia

in certain circumstances.

Prosecutor

Pre-Trial Judge

Trial Chamber

Appeals

Chamber

First

appearance

Conviction

Trial to

determine guiltSentencing

Acquittal

Sentencing

Review

Not guilty pleaGuilty plea

Appeal

Indictment

Pre-Trial phase

Investigation


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II. Origins of victim participation

7. At the international level, the role and status of victims havechanged considerably since the ad hoc Tribunals were established. Atthose Tribunals, victims have no right to participate in the trial in

person, nor do they have the power to seek compensation for the harm

suffered. They appear only as witnesses and are forced to turn to

national courts to seek remedy for their suffering.

8. Concerned about the marginal role of victims and drawing onthe civil law tradition, the authors of the ICC Statute attempted toremedy this situation by providing victims with the right to present,

under certain conditions, their views and concerns at all stages in theproceedings and to seek compensation for the harm they have suffered.

9. Following on from the ICC system and Lebanese criminalprocedure which establishes the civil party system the authors of

the Statute of the Tribunal adopted Article 17 which focuses solely on

the rights of victims. This provision is worded as follows: Where the

personal interests of the victims are affected, the Special Tribunal shall

permit their views and concerns to be presented and considered at

stages of the proceedings determined to be appropriate by the Pre-TrialJudge or the Chamber and in a manner that is not prejudicial to or

inconsistent with the rights of the accused and a fair and impartial trial.

Such views and concerns may be presented by the legal representatives

of the victims where the Pre-Trial Judge or the Chamber considers it

appropriate. As for the RPE, they endeavour to give concrete

expression to these requirements by granting some powers to victims,

similar to those they enjoy in civil law systems, whilst at the same time

striving to ensure the effectiveness and fairness of the legal

proceedings. It is in this spirit that they allow the victim to participatein all stages of the criminal proceedings (apart from the investigation),

under the strict control of the Pre-Trial Judge and the competent

Chambers.

10. Unlike the ICC Statute and Lebanese criminal procedure, thesystem of the Tribunal does not go so far as to afford a right to

compensation to the victims. As with the ad hoc Tribunals, victims


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must turn to national judges or any other competent institution to obtain

compensation for the harm suffered.


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III. Definition of the concept of victim and

victim participating in the proceedings

11. To preserve the rights of the accused and ensure theeffectiveness of the proceedings, the RPE distinguish between the

concepts of victim (1) and victim participating in the

proceedings (2).

1. What is meant by a victim? (Rule 2 of the RPE)

12. A victim is deemed to be a natural person who has sufferedphysical, material or mental harm as a direct result of an attack withinthe Tribunals jurisdiction.

13. Legal persons do not therefore enjoy the status of victimbefore the Tribunal. In order to be granted the victim status, applicants

need toshow prima facie evidence that: (i) they suffered harm, (ii) the

attack which provoked their harm is within the Tribunals jurisdiction,

and (iii) the harm they allegedly suffered is causally linked to the

crimes charged against the accused.

2. What is meant by the concept of victim participating

in the proceedings? (Rules 2 & 86 of the RPE)

14. A victim participating in the proceedings is a victim of anattack within the Tribunals jurisdiction who has been granted leave by

the Pre-Trial Judge to present his views and concerns at one or more

stages of the proceedings after an indictment has been confirmed.

15. Thus not all victims can necessarily participate in the trial. Inorder to preserve the rights of the accused and to ensure the efficiency

of the proceedings, they must have been authorised to do so by a Judge

after hearing the Parties. The Judge shall take into account the

following criteria, inter alia, when ruling on this issue:

i) whether the applicant is a victim pursuant to the definition providedby the RPE;

ii) whether the applicants personal interests are affected;

iii) whether the applicants seeks to express his views or concerns;


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iv) whether the applicants participation would be prejudicial or

inconsistent with the fair trial rights of the accused.


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IV. The roles of the victim

16. A victim may be heard as a witness or/and as a victim (1),although he is not entitled to seek compensation for the harm suffered

before the Tribunal (2).

1. In what capacity can a victim appear before the

Tribunal? (Rules 134, 145, 146, 152 & 165 of the RPE)

17. The victim may first of all be heard as a witness. In this case,as with any witness, his participation in the proceedings is dependenton a number of elements, including the fact that:

i) a victim must be invited by the Parties or by a Judge toparticipate in the legal proceedings;

ii) he may not decline this invitation, or he shall be liable to acharge of contempt of the Tribunal;

iii) he must swear an oath, and, if he does not tell the truth, hemay be subject to criminal proceedings for contempt of court;

iv) he may only make statements under examination and cross-examination by the Parties;

v) he may not request the assistance of a legal representativeduring his court appearance;

vi) he may not lay claim to be informed about the progress of theproceedings, even if they affect him personally; and

vii) he may not hear evidence given by other victims in thecourtroom before his testimony.

18. However, if a victim is permitted to participate in theproceedings, he may also be heard either in person or through a legal

representative as a victim. If giving evidence in person, he shall beafforded all the rights set out in Chapter V below.

2. Can a victim seek compensation before the Tribunal

for harm suffered?(Article 25 of the Statute and Rule 86(G))

19. A victim cannot seek compensation for the harm he hassuffered before the Tribunal.


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20. A victim must turn to the national courts or other competentinstitutions to seek compensation. He may make use of a judgement

resulting in a conviction handed down by the Tribunal before said

courts or institutions, whether or not he has been identified as a victimby the Tribunal. For the purposes of such an action, the judgement shall

be deemed final and binding as to the criminal responsibility of the

convicted person.


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V. The rights of a victim

21. After the confirmation of an indictment (1), a victim hasimportant rights. He can express himself in person both during the trial(2) and at the sentencing stage (3) and also during the appeals

proceedings (4). A victim also has wide-ranging rights in the event of

proceedings in absentia(5).

1. What are the rights of a victim participating in the

proceedings during the investigation? (Article 11 of the

Statute &Rule 86(A) of the RPE)

22. A victim has no rights at this initial stage in the proceedings.Unlike the Lebanese Code of Criminal Procedure, which allows avictim to act as a civil party and to initiate a public action, the RPE

permit victims to participate in the proceedings only after confirmation

of the indictment.

23. In accordance with Article 11 of the Statute, as arepresentative of the public interest, the Prosecutor decides proprio

motu whether or not to set in train the criminal proceedings in

accordance with his chosen prosecution strategy. At most, the victimmay transmit to the Prosecutor any information he considers useful to

determine the truth; and the Prosecutor is then free to decide how this

information may be used.


proceedings during the trial? (Article 17 of the Statute &

Rules 86(B) & (C), 87(A) & (B), 143, 144(B), 146, 147(B),

150(D) & 168(A) of the RPE)

24. During the trial, a victim participating in the proceedings hassignificant powers to present his views and concerns. They include:

i) making an opening statement at the commencement or end ofthe trial;

ii) summoning witnesses to appear;iii) giving evidence;iv) examining and cross-examining witnesses;


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v) requesting the Judges to ask specific questions to the accused;and

vi) filing motions and briefs.25. In order to exercise the afore-mentioned powers, a victim

participating in the proceedings must be kept informed of the progress

of the proceedings, and, in particular, when a judgment rendered by the

Tribunal is pronounced. Unless the Pre-Trial Judge or the competent

Chamber decides otherwise in the interests of justice, he shall also have

access to all the documents filed by the Parties during the trial, together

with the pre-trial case file.

26. However, the participation of the victim is strictly regulated toensure that it is not prejudicial to or inconsistent with the rights of theaccused and a fair and impartial trial. To this end:

i) the victim participating in the proceedings must be expresslyauthorised to exercise the afore-mentioned powers by the Pre-

Trial Judge or Chamber with the necessary jurisdiction;

ii) the number of victims invited to submit their views andconcerns may be limited;

iii)

unless the Pre-Trial Judge or a Chamber decide otherwise, thevictim participating in the proceedings shall do so through a

legal representative;

iv) usually one or more legal common legal representatives maybe appointed to represent the interests of the victims;

v) the victim participating in the proceedings may only questionthe accused through a Judge; and

vi) the victim participating in the proceedings shall not bepermitted to testify, except if the Chamber considers that this

is in the interests of justice.


proceedings during sentencing?(Rule 87(C) of the RPE)27. The proceedings before the Tribunal are divided into twostages: the first aims to establish whether the accused is guilty or

innocent, the second, in the event the accused is found guilty, involves

sentencing.


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28. Victim participation is limited during the second phase: avictim may only give details of the impact of the crime on him if

authorised to do so by the Trial Chamber. He is therefore not entitled to

comment on sentencing. In order to ensure that the rights of the accusedare fully safeguarded and to avoid any form of revenge, only the

Prosecutor, who represents the public interest, is permitted to call for a

sentence.


proceedings during the appeals phase? (Rule 87(D) of the

RPE)

29. The RPE simply provide that a victim [...] may participate ina manner deemed appropriate by the Appeals Chamber subject to itsauthorisation.

30. In theory, a victim participating in the proceedings may thusexercise all the rights afforded to him by the RPE during the trial,

unless the Appeals Chamber decides otherwise. In practice, the scope

of his participation at this stage will vary according to the nature of the

appeals proceedings, which may take place either in written form or

orally.


proceedings in the event of a trial in absentia?(Rule 107 of

the RPE)

31. During the proceedings in absentia, a victim participating inthe proceedings may exercise all the rights he would have had during a

trialheld in the presence of the accused.


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VI. Victim representation

32. In principle, a victim has to be represented by a legalrepresentative during the proceedings (1). He may choose the one heconsiders competent, provided that person fulfils certain conditions as

set out in the RPE (2). If the victim is indigent, he may receive

financial assistance and a lawyer will be assigned to him by the

Registrar(3).

1. Does a victim have to be represented by a legal

representative? (Rule 86(C) of the RPE)

33. In principle, a victim has to be represented by a legalrepresentative during the proceedings, unless the Pre-Trial Judge or the

competent Chamber has decided otherwise.

2. Can a victim choose his own legal representative?

(Rule 51(C)(i) of the RPE)

34. Subject to the power of the Pre-Trial Judge to ask theRegistrar to appoint one or more common legal representatives, a

victim may choose his own legal representative, provided that theperson meets certain criteria set out in the RPE, namely:

i) being on the list of highly qualified legal representatives heldby the Registry;

ii) meet the criteria concerning the qualifications of defensecounsel;

iii) have indicated their availability and willingness to be assignedby the Tribunal to any victim

3. Can several victims be represented by a common legal

representative? (Rules 51(C) & 86(C) of the RPE)

35. The Pre-Trial Judge may decide to limit the number of victimsentitled to express their views and concerns in proceedings. In

principle, he may also order the Registrar to appoint one or more

common legal representatives for multiple victims, except where this

results in a conflict of interest.


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4. Can a victim receive financial assistance to pay for his

representation? (Rule 51(C) of the RPE)

36. Normally a victim who has been declared indigent mayreceive financial assistance from the Registrar to ensure that hisinterests are represented before the Tribunal.


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VII. The Victims Participation Unit

37. A victim participating in the proceedings may receive supportfrom the Victims Participation Unit. Although having a wide-rangingrole (1), the Unit must ensure that it maintains its independence and

neutrality vis--vis all the victims participating in the proceedings and

their representatives (2).

1. What are the roles of the Victims Participation Unit?

(Rules 51(A),(B) & (C) of the RPE)

38. The Victims Participation Unit is responsible for three mainfunctions. Its tasks are:

i) to ensure that: a) the victim or his legal representative is keptinformed of his rights and of developments in the proceedings

of concern to him and; b) that any documents relating to the

victim are communicated to him;

ii) to provide the victim or his legal representative with anymaterial and legal assistance required; and

iii) to ensure that the legal representatives provide a good service.2. How is the neutrality and independence of the

Victims Participation Unit guaranteed? (Rule 51 (C) & (F)

of the RPE)

39. To safeguard the neutrality of the Victims Participation Unitvis--vis all the victims participating in proceedings before the Tribunal

and avoid any conflict of interest, its members:

i) shall not provide any advice on the facts of the case; andii) shall not take any instruction from a victim or be involved inany manner in a specific case or proceeding before the

Tribunal such that the independence of the Unit or of theRegistry may be, or may be perceived to be, compromised.


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VIII. Arrangements for victim participation

40. Arrangements for victim participation shall be laid down in apractice direction which will determine specifically: how to address anapplication for participation to the Tribunal (1), the language to be used(2) and the stage in the proceedings at which such a request may be

made or withdrawn (3). Furthermore, the RPE give a victim who is not

authorised to participate in the proceedings the right to appeal (4).

1. How are applications for participation submitted to the

Tribunal?

41. The application for participation must be sent to the VictimsParticipation Unit. It should include the following information:

i) the full identity of the victim;ii) a summary of the alleged criminal acts which the victim feels

he has suffered;

iii) brief details of the harm suffered; andiv) any evidence in support of the application.42. For the purposes of applying to the Tribunal, victims arerequested to complete an application for participation provided on

request by the Victims Participation Unit or available from the

Tribunals website at the following address: www.stl-tsl.org

43. If necessary, the Victims Participation Unit may provide legalor logistical support to victims wishing to lodge an application for

participation with the Tribunal.

2. In what language(s) should the application forparticipation be submitted?

44. The application for participation must be made in one of thethree official languages of the Tribunal, which are Arabic, English or

French.


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3. At what stage in the proceedings can a victim submit

or withdraw an application for participation? (Rules 86 (A)

& 87 of the RPE)

45. A victim may submit or withdraw his application forparticipation at any stage in the proceedings, after the confirmation of

an indictment.

4. Can a victim appeal a decision dismissing his

application for participation? (Rule 86(D) of the RPE)

46. A victim or his legal representative can appeal the decisiondismissing his application for participation within 7 days from thefiling date of the decision.


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IX. Protection measures for victims

47. The prosecution and judgment of acts of terrorism require theTribunal to be able to take all necessary measures to ensure the

protection of victims and witnesses called to appear before it (1). To

that end, a Victims and Witnesses Unit has been established within the

Registry (2).

1. How does the Tribunal ensure the protection of

victims? (Rules 50, 93, 115, 116& 124 of the RPE)

48. According to the RPE, the Pre-Trial Judge and the Trial andAppeals Chambers may take measures to protect a victim or a witness

before, during and after he has testified before the Tribunal.

49. These measures principally include:i) non-disclosure of the identity of a witness or a victim until the

moment he is placed under the authority of the Tribunal;

ii) the giving of testimony by video-conference link;iii) holding a closed session;iv) facial or voice-distortion during testimony;v) relocating a witness or a victim in a third country; orvi) testifying anonymously (without disclosing the victims

identity to the public and the accused).

2. What are the roles of the Victims and Witnesses Unit?(Rule 50 of the RPE)

50. A Victims and Witnesses Unit has been established within theRegistry. It has two main functions:

i) formulating strategies for the protection of victims andwitnesses; and

ii) providing them with all the necessary administrative, logistic,psychological and medical assistance.


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Documents

Information Guide on Victim Participation in the Proceedings of the STL