[On this date in 2002 Professor Hans Köchler, United Nations appointed observer at the Lockerbie trial and appeal, submitted his report on the appeal proceedings that upheld the conviction of Abdelbaset Megrahi. The report can be read here. What follows is the final section:]
On the basis of the above observations and evaluation it can be stated that the appeal proceedings were not fair (and thus not in conformity with the requirements of Art 6 Par 1 of the European Human Rights Convention) in two basic respects:
(a) The appeal judges chose a kind of “evasive” strategy by not scrutinizing the argumentation of the trial court in regard to its plausibility and logical consistency, thus not questioning at all the arbitrariness of the evaluation of evidence by the trial judges, and not paying adequate attention to new evidence presented in the course of the appeal – an attitude of effective denial of responsibility that made the entire process a highly formal, artificial and abstract undertaking not related to the search for truth (an essential requirement of justice) and rendered the appeal proceedings virtually meaningless. What else could be the meaning of an appeal process if not a comprehensive review of a trial court’s decision in regard to its duty to find the truth in order to make a decision on guilt or innocence “beyond a reasonable doubt”?
(b) The Defense chose not to make use of many of the means available to it to defend the appellant and thus deprived him of his right to adequate and authentic legal representation under European standards.
One may formulate as a general maxim that in a case like the present one – where the proceedings are based entirely on circumstantial evidence and the Opinion of the Court operates with a series of inferences (often being as vague as mere speculation) – that assumption (or conclusion) is preferable to any other that requires fewer inferences and less artificial (or arbitrary) “reinterpretation” of the facts (the evidence accepted by the court). If one takes this maxim of logical reasoning and common sense into consideration, one may safely state that a reasonable jury could never have come to the conclusion of “guilt” in regard to the appellant on the basis of the vague and ambivalent evidence related to the supposed sequence of events in Malta. Furthermore, it can be reasonably stated that a determination of “guilty” under such circumstances does in no way meet the basic requirement under Scottish law that proof must be established beyond a reasonable doubt. The Appeal Court completely failed to deal with this basic issue of the case and preferred to effectively “put the blame” on the Defense’s omissions – explicitly stating that the Defense had accepted that there was a sufficiency of evidence and that it had expressly disavowed any claim of a “miscarriage of justice” according to the terms of Section 106 (3) Par (b) of the Criminal Procedure (Scotland) Act 1995 (referring to a jury’s having returned a verdict which no reasonable jury, properly directed, could have returned).
Whatever the nature of a system of criminal law, whether inquisitorial or adversarial, criminal proceedings, in order to be fair, must be based on the search for truth by means of establishing the facts and applying logical argumentation in the interpretation of the facts.
In view of the above conclusions, the undersigned considers it of special importance that investigations will be undertaken by the competent judicial authorities of the United Kingdom and Scotland respectively (a) in regard to the alleged withholding of evidence on the break-in at Heathrow airport, and (b) in regard to the alleged invitations by the Scottish Police of Mr Gauci for holiday trips to Scotland (which may have constituted illegal influencing of a key witness of the Prosecution by the Police – eventually making necessary a reevaluation of the evidence given by this witness). Furthermore, it will be of utmost importance to investigate the absence of the police after the break-in at Heathrow. In his testimony before the Appeal Court, Mr Manly stated that he did not see a single police officer after the reporting of the incident on the night of 20/21 December 1988. These are just three of several mysterious circumstances that have led international observers of the Lockerbie proceedings to raise reasonable doubts in regard to the correct and independent handling of the case by the judicial authorities of the United Kingdom and Scotland. In this regard, the call of British victims’ families for a public inquiry to be initiated by the House of Commons gains special relevance.*
If the shortcomings and deficiencies of the trial and appeal proceedings referred to above are not to be attributed merely to this special court (having operated under considerable political influence), but to the system of criminal justice in Scotland in general, a comprehensive review of that system may be necessary. Because of the exemplary nature of the case – in regard to the handling of a criminal case in a highly politicized international context –, and in view of repeated references by the Scottish judicial authorities to the adversarial nature of the Scottish system of criminal law (which was emphasized to explain the actual conduct of the Lockerbie trial), it may be of importance to ask four basic questions related to the compatibility of Scottish criminal law with the requirements of the European Convention for the Protection of Human Rights and Fundamental Freedoms:
(A) Is the Scottish system of criminal law – insofar as it excludes, in appeal proceedings, the critical review of the trial court’s evaluation of evidence – compatible with Art 6 of the Convention? If the argumentation of a trial court cannot be scrutinized and its original evaluation of evidence becomes a dogma not to be challenged by an appeal court, an appellant is effectively deprived of his right to a comprehensive review of his case in regard to the basic principle of fairness. The Appeal Court’s statement in Par 21 of the Opinion issued on 14 March 2002 “that it was not open to this court to review all the evidence which was before the trial court in order to determine for itself whether that court had come to the correct conclusion” highlights this problem; this finally leads to the question whether an appeal is not rendered meaningless under the restrictions imposed on it – in the interpretation of the present Appeal Court – under Scottish law. What is the meaning of an appeal in such a context of criminal law, where the original evaluation of evidence by the trial judges cannot be scrutinized by the appeal judges? A critical review of proceedings, which constitutes the essence of the rule of law, including the system of criminal law, becomes impossible in such a context. Arbitrariness takes the place of comprehensive reexamination of a case.
(B) If the defense does not properly play its antagonistic role in an adversarial system, ie if it chooses not to use the means actually available to it and does not act in an authentic manner, the interplay of forces in regard to the “equality of arms” – which is absolutely essential in an adversarial system of criminal law – is set off balance. Because the role of the judges is not that of active investigators, there will be no remedy for such behavior by the Defense, ie for its decision to neglect its duties, and the accused / appellant will be deprived of his right to a fair trial.
(C) The rejection of any inquisitive duty on the part of the judges in an adversarial system such as the Scottish one may not be compatible with Art 6 (1) of the European Human Rights Convention. (See the European Court of Human Rights’ Judgment of 16 February 2000, referred to above, declaring, inter alia, in regard to adversarial proceedings, “the unfairness caused at the trial by the absence of any scrutiny of the withheld information by the trial judge.”)
(D) If we follow the operative definition of the formulation “proven beyond a reasonable doubt” in the context of the appeal court’s – and the trial court’s – deliberations and in the opinions of the trial and appeal courts, the concept of “reasonable doubt” becomes not only imprecise but meaningless because it is applied to an argumentative situation in which the determination of guilt is based on often vague evidence and on a series of highly problematic inferences. If a court is satisfied that the kind of weak evidence and inferences drawn from it found in the present criminal proceedings fit together “to form a real and convincing pattern” (see Par 368 of the Opinion of the Appeal Court of 14 March 2002), then any kind of inference and speculation, as long as it is drawn by a court in the exercise of its official function, meets the criterion of “proven beyond a reasonable doubt.” This would imply that an accused / appellant would have no chance to escape the arbitrariness of a court’s reasoning because virtually every set of inferences – irrespective of the grade of probability and of the rational quality of the argument – would fall under this definition. Such a situation, undoubtedly, cannot be reconciled with the basic requirements of the fairness of trial proceedings.
The Lockerbie case is also of exemplary nature for the development of international criminal justice. Because a precedent may have been set by the handling of the case in the framework of the Scottish Court in the Netherlands, the undersigned considered it necessary to add to the mere observations on the proceedings the above analytical remarks on the set-up, general normative framework and specific functioning of the court under the conditions of an adversarial system of criminal justice.
Regrettably, the undersigned has come to the conclusion that this specific type of court and court proceedings – whereby a national court deals with a matter of personal criminal responsibility of a foreigner in a case which at the same time relates to a dispute between UN member states, and specifically between the accused’s state and the state that exercises jurisdiction over him – is not viable in regard to the attainment of justice in the sense of transparent procedures and independent deliberations of a criminal court. The aforementioned dispute between states (in particular the United States, the United Kingdom and Libya) is still pending before the International Court of Justice and the trial arrangements have been set up following a resolution of the Security Council based on Chapter VII of the Charter. It has been proven as impossible – in this highly charged political context of inter-state relations and higher state interests – to conduct a criminal trial in an “independent legal space,” i.e. in an atmosphere of independence vis-à-vis national politics and international power politics at the same time. The extraterritoriality of the location of the proceedings was simply not sufficient to guarantee a fully independent trial. The geographical location of the proceedings outside of Scotland, despite the enormous costs involved, finally proved to be only a kind of sedativum for those concerned about the independence and impartiality of the proceedings.
In this regard, the undersigned would like to recall the reservations expressed by the International Progress Organization’sCommittee of Legal Experts on UN Sanctions against Libya, in a declaration dated 3 September 1998, concerning Security Council resolution 1192 (1998): “The Scottish legal system is undoubtedly up to international standards of due process and fair trial. There is no reason to doubt the report (Doc. S/1997/991) of the independent experts appointed by the Secretary-General of the United Nations on the Scottish judicial system. The real issue is not whether Scottish law is applied or not, but whether a tribunal exclusively consisting of Scottish judges can meet the requirement of impartiality. … The two Libyan suspects have already been publicly convicted in the United States and in the U.K. in violation of basic requirements of due process of law and the presumption of innocence. Under the present circumstances, it is hard to see how Scottish judges should be completely independent of this public conviction …. Only an international composition of the tribunal could provide remedy to this serious problem of fairness and impartiality.” The IPO Committee further stated that “a criminal tribunal on this case should either be international in its composition or should operate in an international framework such as that of the International Court of Justice. The procedural details should be worked out on the basis of the Statute of the International Court of Justice and not through bilateral agreements between the governments of the UK and the Netherlands as stipulated in Art 3 of the Security Council resolution.” The undersigned regrets to admit that, contrary to his hopes at the beginning of the trial in May 2000, the above-expressed reservations – in the formulation of which he had participated as coordinator of the Committee of Legal Experts – were proven justified in the course of events.
Because of the circumstances of the trial and appeal proceedings described above and in view of the considerable influence of power politics on any case where a national court deals with a matter related to a dispute between states, including the one exercising jurisdiction, the undersigned is convinced that the only viable alternative – in terms of independence of the judiciary and fairness of trial in any such case – will be proceedings under the regulations of the Rome Statute of the International Criminal Court (ICC). He expresses the hope that the Statute will come into force in the foreseeable future – in spite of its rejection by United Nations member states involved in the Lockerbie dispute. It has become evident that no national court and noad hoc tribunal set up by the Security Council can meet the requirements of independence, due process, impartiality and fairness. Only an internationally composed court (such as the ICC) will be able, at least in regard to its basic setup and procedural rules, to operate outside the framework of power politics.
Regrettably, the decision of the Appeal Court in the case of Abdelbaset Ali Mohamed Al Megrahi v H M Advocate was not a victory for justice, but for power politics. The proceedings have proven that a legally guaranteed separation of powers in a system which prides itself on its commitment to the rule of law is not a sufficient safeguard against political interference so as to ensure the independence and impartiality of criminal proceedings. However, the Lockerbie proceedings have taken place in the common “European space” of human rights and may accordingly – after all means of review in the judicial context of the United Kingdom have been exhausted – be reviewed by the European Court of Human Rights that exercises its jurisdiction on the basis of the Convention for the Protection of Human Rights and Fundamental Freedoms.