Importing Human Rights to the Proposed Hariri Court's Process

Beirut, Lebanon, March 28, 2008: The proposal to set up a special quasi international court to try the persons who may be eventually accused and indicted for the crime of murdering former Prime Minister Rafiq Hariri (commonly referred to as the "Hariri Court") has already been dangerously infected with politics. Worse than that, it is increasingly being compromised with some of the most dangerous ailments of the Lebanese judicial system that it was meant to be freed from. What I mean is the practice of according conclusive evidentiary weight to primary police investigations to incriminate the accused.

The common reference in Lebanon to the successively appointed chiefs of the special UN investigation commission, such as Detlev Mehlis, as "judges" is wrong and serves to give their work, which is of the nature of a police investigation, far more weight than is recognized by law. In Lebanon, like in most countries, primary investigations, conducted by the police, are only one step in a series of processes leading in the end either to incrimination or acquittal. In serious crimes punishable by over three years of imprisonment as is obviously true in the Hariri murder case, such investigations are used by a prosecutor to refer the file to an investigating judge who will conduct further investigations and present his conclusions to a special chamber of the court of appeal that has the ultimate power to issue an indictment. The indicted persons are then tried before a criminal tribunal that has the power to acquit or incriminate them. Until a final judgment is adopted, the accused are unequivocally entitled to the presumption of innocence. This is the law, fully supported by the European Convention on Human Rights and Articles 10 and 11 of the Universal Declaration of Human Rights which is incorporated by reference into the Lebanese Constitution.

The purpose of a primary investigation is to collect raw evidence that may later be used for prosecution and indictment. Nevertheless, it is up to the tribunal, and to the tribunal alone, to consider the admissibility and effect of such evidence, if any, in open court under the statutory rules of evidence and with the full exercise by those accused of their right of defense. In Lebanon, primary investigations involve interviewing the suspects in closed interrogation rooms, without assistance by lawyers. The transcript is recorded by the investigators themselves in long hand and is signed by the suspects, often under duress and without knowledge of their legal rights. In many cases the investigators are heavily influenced by politics and/or by their own zeal and perception of justice. To some, such influences justify the use of duress and even torture. I have personally witnessed a police captain beat up beat up his prisoner without any provocation and when I reported the event to the prosecutor general in writing, as was my duty as a lawyer, the prosecutor did nothing and, in his presence, the police officer involved defiantly told me that he was prepared to do it again.

Unfortunately, most Lebanese courts consider admissions under such circumstances, in spite of their subsequent retraction, as sufficient and conclusive evidence of guilt, without any corroboration. One such case against four young people came, on appeal, before the Sixth Chamber of the Court of Cassation chaired by Judge Ralph Riachi. The high court unanimously rejected the defense, that admissions were obtained by the police during the stage of primary investigations under duress and were subsequently retracted before the investigating judge, and that such admissions were used to indict and incriminate the appellants in the absence of any other evidence, and upheld the convictions (Decision No. 320/2003, Case No. 274/2003).

The fact of the matter is that investigators are not judges and have no judicial power, and their closed interrogation rooms are not court rooms open to the public. The safeguards embodied in internationally recognized human rights require that the process that could lead to the negation of the presumption of innocence be built on solid evidence presented in the court room where the accused have the assistance of lawyers and the fullest opportunities to exercise their right of defense. The locking of the process before the indictment and trial, on the basis of primary investigations, is a grave violation of human rights and a denial of justice.

The raison d'etre of the proposal for the Hariri Court was lack of confidence in the capabilities of the Lebanese judicial system. It will be a great pity to import such system, including the practice of convicting suspects on the basis of primary investigations conducted by the police, or, in the Hariri Case, the investigators of the special UN commission. The recent television interview of Mehlis, basically a glorified and high ranking German police officer, and the conclusions that could be reached by the public based on his off-the-cuff sayings, provide added reasons for grave concern that a zealous primary investigator has been openly trying to lock the process of the proposed Hariri Court and destroy the human rights safeguards that are desperately needed to insure that justice is not only done but also seen to be done.

Dr. Mugraby is a lawyer and advocate of human rights and democracy. He is the president of Center for Democracy and the Rule of Law. An edited version of this opinion appeared today in the Daily Star, Beirut, and was posted on www.cdrl.org.

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