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Prosecution Rule 154 Motion for the Admission of Documents Relating to Telephone Subscriber and User Information, 21 July 2015

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Prosecution Rule 154 Motion for the Admission of Documents Relating to Telephone Subscriber and User Information, 21 July 2015 Mr Antoine Korkmaz, Mr John Jones QC & Legal Representatives of Mr lain Edwards Participating Victims: Mr Peter Haynes QC, Mr Mohammad F. Counsel for Mr Hassan Habib Merhi: Mattar & Ms Nada Abdelsater-Abusamra Mr Mohamed Aouini, Ms Dorothee Le Fraper du Hellen & Mr Khalil Jad Mr David Young, Dr Guenael MettralllPe.,..-r-~­ Mr Geoffrey Roberts R276569 STL-11-01/T/TC F211 0/20 150805/R276568-R276579/EN/dm I. Introduction 1. On 21 July 2015 the Prosecution filed its Rule 154 Motion for the Admission of Documents relating to Telephone Subscriber and User Information 1 (the "Prosecution Motion"), in which it seeks the admission into evidence of 27 documents aiming at attributing phone numbers. Pursuant to Rule 8 of the Rules of Procedure and Evidence, the Defence for Mr Mustafa Amine Badreddine (the "Defence") hereby submits its response to the Prosecution Motion. 2. The Defence takes no position on the admissibility of the following 20 exhibits and, where applicable, on their addition to the exhibit list: R91-804081; R91-805422 (proposed); R91-805367; R91-805355; R91-805356; R91-805357; R91-805358; R91-805359; R91-805360; R91-805361; R91-805362; R91-805199; R91-805200; R91-80520 1; 1 STL, Prosecutor v. Ayyash et a!., STL-11-01/T/TC, Prosecution Rule 154 Motion for the Admission of Documents relating to Telephone Subscriber and User Information, 21 July 2015. Case No. STL-11-01/T/TC 1 of 11 5 August 2015 R276570 STL-11-01/T/TC F211 0/20 150805/R276568-R276579/EN/dm R91-805363; R91-805364; R91-805365; R91-805366; R91-805369; and R91-805424 (proposed). The Defence makes no admissions in general regarding these documents and takes issue with the conclusions the Prosecution intends to draw from them. In particular, the Defence submits that, absent good corroborative evidence, 2 the probative value of a subscriber note for a landline under the name of Hassan N asrallah as supportive of the allegation that this line was used or even related to Mr N asrallah is practically zero. The Defence will make full submissions in this regard at the appropriate time. Moreover, the Defence takes issue with the purported explanations provided in the Prosecution Motion as to the relevance of the purported phone numbers of Hassan N asrallah3 and of the "senior Hezbollah official"4 as will be further addressed below. 3. The Defence objects to the admission into evidence and, where applicable, the addition to the exhibit list of the remaining seven exhibits which form the subject matter of the Prosecution Motion. It is submitted that the relevance of this evidence to the charges against the Accused as set out in the consolidated indictment has not been established. The reasons provided by the Prosecution are vague and imprecise. The Defence has not been put on notice of the Prosecution's case. In the Defence's submissions, the Prosecution should be required to put its case clearly before the admission into evidence of this material is discussed. Only then can the potential prejudicial effect of these late additions and new allegations be fully assessed. The Defence submits that it cannot, and should not have to, address this evidence as the Prosecution's case progressively unfolds. It is not for the Defence to try to second-guess what the Prosecution's case is based on its sibylline remarks .. This is too cumbersome given the circumstantial nature of this evidence. In any event, if the 2 Prosecution Motion, 21 July 2015, confidential Annex D, p. 3, first row. 3 Prosecution Motion, 21 July 2015, para. 15, and confidential Annex A, row 7. 4 Prosecution Motion, 21 July 2015, para. 30, and confidential Annex A, row 5. Case No. STL-11-01/T/TC 2 of 11 5 August 2015 R276571 STL-11-01/T/TC F211 0/20 150805/R276568-R276579/EN/dm Prosecution's case with regard to this evidence is limited to what is stated in the Motion, it is submitted that it is irrelevant to the charges, non-probative, and should therefore be excluded. II. Submissions A. Subscriber Notes for the Telephone Numbers of Nasser Kandil, Bassem Yamout, and Adnan Arakji (R91-805368, R91-805370, R91-100297) 4. As a preliminary matter, the Defence observes that R91-1 00297 was never properly added to the exhibit list. The document was disclosed on 20 March 2015 bearing the Rule 91 number of the subscriber database from which it was extracted,5 contrary to the appropriate practice followed with regard to the other extracts. The Prosecution should be required to seek leave to add this new extract to its exhibit list prior to seeking its admission into evidence. 5. With regard to the relevance of these phone numbers, the Defence notes that when the Prosecution sought leave to add R91-805368 and R91-805370 to its exhibit list on 15 December 2014, it provided the vague explanation that they related to Lebanese MPs who met with Rafik Hariri and who were involved in relevant political events in the months leading up to Mr Hariri' s assassination. 6 The Prosecution now indicates that on dates relevant to the events leading up to Rafik Hariri's assassination between October 2004 and February 2005, these MPs' phone numbers appear in the call sequence tables of "relevant political figures", such as Rustom Ghazaleh, and that on 29 January 2005 Messrs Kandil and Yamout were in telephone contact with Mr Ghazaleh after he had been informed by Prime Minister Hariri that they would not be on his electoral list. 7 Nothing is said about the alleged phone calls of Mr Arakji to "relevant actors at significant times". 8 The relevant political actors other than Rustom Ghazale and the relevant dates other than 29 January 2005 are unknown and the Prosecution has made no attempt to explain its case in this respect. 6. While the names of these MPs did come up during the presentation of the "political context evidence", the relevance of their purported phone calls and what they would add to this evidence has not been explained by the Prosecution. In particular, the significance of the phone calls of 29 January 2005 is not evident given that these phone numbers are frequently 5 Disclosure Batch 1941. 6 STL, Prosecutor v. Ayya~h et a!., STL-11-01/T/TC, Prosecution Request to Amend its Exhibit List, 15 December 2014, para. 15, and confidential Annex A, rows 114 and 116. 7 Prosecution Motion, para. 16, and confidential Annex A, rows 1 and 25. 8 Prosecution Motion, para. 16, and confidential Annex A, row 26. Case No. STL-11-01/T/TC 3 of 11 5 August 2015 R276572 STL-11-01/T/TC F211 0/20 150805/R276568-R276579/EN/dm in contact with one another over a lengthy period of time. It will be noted that these phone calls do not appear in the latest version of the Communications Chronology Report dated 20 February 2014. 9 The Defence makes clear that it does not consider itself having been properly put on notice of the relevance of this evidence, and is not in a position to address this issue. 7. The Defence recalls that "the offering party must be able to demonstrate, with clarity and specificity, where and how each document or record fits into its case". 10 It is submitted that the Prosecution should be required to specify who these "relevant actors" are, when the phone calls took place, and why this is significant. Only then can the potential prejudicial effect ofthe late notice of this evidence be properly assessed. 8. Without more information, this evidence should, it is submitted, be excluded for lack of relevance and probative value. The Defence underscores that the admission of a subscriber note ultimately involves the analysis of the related CDRs. It is submitted that it is not for the Defence to second-guess, going through these CDRs, what the Prosecution may consider relevant to its case. In a case based primarily on circumstantial evidence, this would place a disproportionate burden on the Defence. B. Subscriber Note for Landline of Syrian Forces in Lebanon, Anjar (R91-805425 (proposed)) 9. The Prosecution indicates that this phone line was in regular contact with Rustom Ghazaleh as well as in occasional contact with the "senior Hezbollah official", Hussein Khalil, and Wissam Al-Hassan on relevant days between October 2004 and February 2005, including on 9 January 2005, the day of Rustom Ghazaleh's last meeting with the former Prime Minister at Quraitem Palace, and is therefore relevant to establishing communication between relevant actors at significant times in the months leading up to Rafik Hariri's assassination. 11 The Defence submits that this description is vague and imprecise. The Prosecution has failed to state its case as to inter alia (i) who the person using this phone when calling these four individuals is; (ii) what the relevant days, other than 9 January 2005, over this five-month period are; (iii) what the significance of these phone calls to the charges is; and (iv) which material allegation(s) in the indictment this evidence underpins. All these 9 R91-805132. 10 STL, Prosecutor v. Ayyash et al., STL-11-01/PT/TC, Decision on Prosecution's Motion to Admit into Evidence Photographs, Videos, Maps, and 3-D Models, 13 January 2014, para. 6. 11 Prosecution Motion, para. 18, and confidential Annex A, row 19. Case No. STL-11-01/T/TC 4 of 11 5 August 2015 R276573 STL-11-01/T/TC F211 0/20 150805/R276568-R276579/EN/dm questions are unanswered by the Prosecution.
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