In April 2010, the President of the Special Tribunal for Lebanon, Judge Antonio Cassese, issued an order assigning El Sayed's original request for disclosure of confidential evidence and court documents to the Pre-Trial judge. President Cassese held that the right to access to justice is fundamental and must be protected. He ordered the case assigned to the Pre-Trial Judge to determine whether El Sayed had standing and whether the information in question could be disclosed.
The Pre-Trial Judge reviewed El Sayed's application and concluded that the Tribunal had "implicit" jurisdiction to hear the case as it "is closely linked to (the Tribunal's) original subject matter jurisdiction and must be settled in the interests of fairness of the proceedings and good administration of justice." Regarding the applicant's standing, the Pre-Trial Judge concluded that while El Sayed is not a "party" as defined by the Tribunal's Rules, "the Applicant had been detained in connection with the Hariri case and under the legal authority of the tribunal." Finally, the Pre-Trial Judge also stressed that there was a "general right of an accused to have access to documents in his criminal file, based on a broader right of defence and the general principle of equality of arms, as well as on the practice of national and international courts."
The prosecution appealed the Pre-Trial Judge's determinations, claiming, inter alia, that disclosure of evidence "would improperly reveal highly sensitive information to the Applicant and his counsel that would prejudice the Prosecutor." The prosecution also challenged the Pre-Trial Judge's determination that the Tribunal had jurisdiction to hear the case and that El Sayed had standing. According to the prosecution, since there were no proceedings against the applicant, the Tribunal could not exercise incidental or inherent jurisdiction regarding related legal issues. Furthermore, the fact that El Sayed was once detained by the Tribunal did not mean that he had standing to appear before it.
The Appeals Chamber upheld the Pre-Trial Chamber's conclusion and ruled that "the combination of a string of decisions in this field, coupled with the implicit acceptance or acquiescence of all the international subjects concerned, clearly indicates the existence of the practice and opinion juris necessary for holding that a customary rule of international law has evolved." In fact, the exercise of implicit jurisdiction, the Appeals Chamber continued, is necessary to "remedypossible gaps in the legal regulation of the proceedings." The Appeals Chamber then went on to affirm the Pre-Trial Chamber's decision to hear El Sayed's application and consider the merits of his request.
The May 2011 decision enables El Sayed to obtain some documents identified by the prosecution and approved by the Court on an ongoing basis. The Pre-Trial Chamber also ordered the prosecution to file a report by June 13, 2011, detailing steps taken to fulfill the discovery order.
Source : ASIL