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BEFORE THE TRIAL CHAMBER SPECIAL TRIBUNAL FOR LEBANON

Case No.: STL-11-01/T/TC

Before: Judge David Re, Presiding Judge Janet Nosworthy Judge Micheline Braidy Judge Walid Akoum, Alternate Judge Judge Nicola Lettieri, Alternate Judge

The Registrar: Mr Daryl Mundis

Date: 5 August 2015

Filing party: The Defence for Mr Hassan Habib Merhi

Original language: French

Classification: Public

THE PROSECUTOR v. SALIM JAMIL A YYASH MUSTAFA AMINE BADREDDINE HASSAN HABIB MERHI HUSSEIN HASSAN ONEISSI ASSAD HASSAN SABRA

MERHI DEFENCE RESPONSE TO THE "PROSECUTION RULE 154 MOTION FOR THE ADMISSION OF DOCUMENTS RELATING TO TELEPHONE SUBSCRIBER AND USER INFORMATION"

Office of the Prosecutor: Defence for Mr Salim Jamil Ayyash: Mr Norman Farrell Mr Eugene O'Sullivan, Mr Emile Aoun & Mr Thomas Hannis

Legal Representatives of Victims: Defence for Mr Mustafa Amine Badreddine: Mr Peter Havnes, Mr Mohammad F. Mattar Mr Antoine Korkmaz. Mr John Jones R276664 PUBLIC STL-11-01/T/TC F21 09/20 150811/R276663-R276666/FR-EN/dm

1. The Merhi Defence ("Defence") opposes in part the Prosecution Motion for the addition of four documents to its exhibit list, pursuant to Rule 91 of the Rules of Procedure and Evidence (the "Rules"), and for the admission into evidence of 27 documents relating to telephone subscriber information, pursuant to Rule 154 ofthe Rules (the "Motion").1

Admission of documents relating to telephone subscriber information

2. The Defence opposes the admission into evidence of ten documents relating to information regarding the phone lines of Bashar Al-Assad,2 Hassan Nasrallah,3 Ali Ammar,4 Bassem Yamout, 5 Raymond Azar, 6 Wafik Safa, 7 Adnan Ahmad Arakji, 8 Khalil Farhat, 9 Nasser Kandil, 10 and the phone lines of the Syrian Forces in Lebanon. 11

3. The Defence reiterates its general objection regarding the presentation of evidence relating to the political context, due to its lack of relevance. 12

4. It points out, moreover, that unlike the documents previously admitted which can "provide relevant background" or "help to explain the wider circumstances leading to Mr

Hariri's assassination", 13 the evidentiary material presented here specifically refers to the acts and conduct of the accused:

[ ... ] on 20 December 2004, a senior Hezbollah official called the accused Mustafa Badreddine and then soon after called Secretary General Nasrallah. The Subscriber Note for this telephone number [Hassan Nasrallah], taken in

1 STL, Prosecutor v. Ayyash et al., STL-11-0l/T/TC/F2086, Prosecution Rule 154 Motion for the Admission of Documents relating to Telephone Subscriber and User Information, 21 July 2015 ("Motion"). 2 ERN 60297582-60297852 I R91-201140 (Annex A to the Motion, item 3); ERN 60032349-60032361 I R91- 201150 (Annex A to the Motion, item 27). 3 ERN D0377514-D0377514 I R91-805367 (Annex A to the Motion, item 7). 4 ERN 60297779-60297779 (Annex A to the Motion, item 4). 5 ERN D0421618-D0421618 I R91-805370 (Annex A to the Motion, item 1). 6 ERN 60297779-60297779 (Annex A to the Motion, item 4). 7 ERN 60297766-60297766 (Annex A to the Motion, item 5). 8 ERN D0440596-D0440596 I R91-100297 (Annex A to the Motion, item 26). 9 ERN D0429235-D0429235 (Annex A to the Motion, item 6). 10 ERN D0421481-D0421481 I R91-805368 (Annex A to the Motion, item 25). 11 ERN D0441232-D0441232 (Annex A to the Motion, item 19). 12 See STL, Prosecutor v. Ayyash et al., STL-11-01/TITCIF1746, Consolidated Response from the Merhi Defence to the Motions of 21, 24 and 30 October 2014 to Amend the Exhibit and Witness Lists and to Admit Evidence Relating to the Movements of Rafic Hariri and to the Political Context (confidential), 10 November 20 14; STL, Prosecutor v. Ayyash et al., STL-11-0 liTITCIF 1801, Merhi Defence Response to the Prosecution Request of 15 December 2014 to Amend its Exhibit List, 29 December 2014. See also TR (FR), 13 November 2014, pp. 94-100. 13 See, e.g., STL, Prosecutor v. Ayyash et al., STL-11-0l/TITCIF1802, Decision on Prosecution's Motion for Admission into Evidence of 485 Documents, Photographs and Witness Statements Relevant to Hariri's Movements and to Political Events, 30 December 2014, para. 30.

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conjunction with other evidence, is therefore relevant to establishing the meetings between Mr. Nasrallah and Prime Minister Hariri and to establishing the patterns of communication between relevant actors. 14

[ ... ] the Prosecution will tender evidence indicating that Syrian officials in Lebanon, including Rustom Ghazaleh, were in contact with the numbers associated with President Bashar Al-Assad on key dates leading up to the assassination of Rafik Hariri. 15

[ ... ] The call records for this phone [of a senior Hezbollah official], if admitted, would indicate that after Rustom Ghazaleh's last meeting with Prime Minister Hariri on 9 January 2005, Mr. Ghazaleh immediately called this senior Hezbollah official, who in turn contacted Hassan Nasrallah. Following this call, it is a reasonable inference from the call records that Mr. Ghazaleh travelled to south Beirut to Dahiyeh, after which the senior Hezbollah official was in contact with the accused Mustafa Badreddine. This senior Hezbollah official was also in contact with Mr. Badreddine twice on the night of 13 February 2005, approximately 12 hours before the Prime Minister's assassination. Immediately after these two calls, Mr. Badreddine called Salim Jamil Ayyash using their Green phones. This senior Hezbollah official's phone number was also in contact with Mr. Ayyash on 16 September 2004. Therefore, considered in conjunction with other evidence, the identification of this senior Hezbollah official's phone number is relevant to establishing communication between a senior Hezbollah member and the accused Mustapha Badreddine at highly significant times, as well as with the accused Ayyash in mid-September 2004. 16

5. These allegations "identifying communications between relevant actors at times significant to the events leading up to the assassination" 17 are new, directly implicate the accused and yet have never been notified. It would be profoundly unfair and prejudicial for the Defence to have admitted into the case file, which is moreover by way of Rule 154 of the Rules, evidentiary material in support of allegations which were not pleaded in the Indictment. The Defence therefore requests that the Motion for the admission into evidence ofthose ten documents be dismissed.

6. The Defence does not take a position with respect to the admission into evidence of the other 17 documents.

Amendment to the exhibit list

7. The Defence opposes the addition to the exhibit list of the four proposed documents. 18 For the reasons stated previously, the Defence challenges the prima facie relevance of that

14 Motion, para. 15 [emphasis added]. 15 Motion, para. 29. See also Motion, para. 26. 16 Motion, para. 30 [emphasis added]. 17 Motion, para. 10. 18 Motion, paras 37-40.

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evidentiary material. The addition of that material to the list, specifically in order to support new vague allegations, which are not pleaded in the Indictment yet are related to the acts and conduct of the accused, would be highly prejudicial to the Defence.

8. The Defence points out in particular, with respect to the recent discovery by the Prosecution19 of the relevance of two documents which are extracts from Jamil El-Sayyed's phone book,20 that no valid reason is put forward so as to justify this late addition more than eight months after the presentation of the first materials relating to the political context and more than one-and-a-half years after the start of trial.

For these reasons, may it please the Trial Chamber to:

DISMISS the Motion for the admission into evidence, in accordance with Rule 154 of the Rules, of the ten documents referred to in paragraph 2 of the present response;

DISMISS the Motion for the addition to the Prosecution's exhibit list, in accordance with Rule 91 of the Rules, of the four proposed documents.

Without prejudice. Mohamed Aouini Lead Counsel [signature]

Jad Youssef Khalil Dorothee Le Fraper du Hellen Co-counsel Co-counsel [signature] [signature]