Hassan Diab, trial in absentia

Since 2008 Hassan Diab has been on a treadmill of arrests, court appearances, detentions, hearings, trials, appeals and at least one extradition (with a second possibly in the offing) in Canada and France. 

“I am surprised by the lack of finality. The Diab case has gone on that long. How many judicial minds in the process has the case gone through,” asked Jacqueline Hodgson, a UK law professor at the University of Warwick and an expert in the French criminal process. 

Diab is not speaking to reporters on the advice of lawyers assisting his civil suit for wrongful extradition to France against the Canadian federal government. Little is happening in the suit; the government side has not responded, says Roger Clark, a spokesperson for the Hassan Diab support committee. 

Diab is Lebanese born, Muslim and a Canadian citizen. From news reports it appears he is highly motivated while always maintaining his innocence, which was been confirmed in court. In the current lull he is teaching part-time at Carleton University in Ottawa. For the challenges ahead he has the backing of such groups as the International Civil Liberties Monitoring Group, the Canadian Association of University Teachers, Amnesty International and Independent Jewish Voices. 

The latter is important because Diab was originally charged with responsibility for the October 3, 1980 bombing of the Copernic synagogue in Paris where four people died and another 40 were wounded.  More mainstream and conservative Jewish organizations in Canada including the Centre for Israel and Jewish Affairs (CIJA) supported the 2014 extradition of Diab to France to face charges. But in the ensuing years that call in Canada has virtually died down, THERE especially after French investigative judges acquitted Diab in 2018.  Two former executive members of the now defunct Canadian Jewish Congress, Benjamin Shinewald and Bernie Farber have expressed contrition for how Diab was treated. (CIJA is noticeably silent about this case since Diab’s return and has refused interview requests on the matter).

By all accounts it appears that the perpetrator of the Paris bombing was never tracked down. He may even be deceased today.

Yet, Diab remains the sole suspect in France and the victims’ families and their supporters continue to demand accountability for the deaths and wounded in 1980. So, the legal travails for Diab continue and Roger Clark worries about how Diab in his later 60s will continue to cope.

READ MORE: Hassan Diab supporters urge government to deny extradition

“I worry personally and others in the group worry about the impact on Hassan and his wife. It would be wrong to say he is suffering but I know it is extremely stressful on him,” said Clark, also a former secretary general at Amnesty International Canada.

An essential detail in this complex story is that Diab has been back home with his wife and two children in Ottawa since 2018. That was when he was released from a French prison after spending about three years in solitary confinement.

The 2018 judges who acquitted Diab confirmed that the defendant was writing his university exams in Beirut and thus nowhere near Paris in the early fall of 1980 when the bomb exploded. Plus, reputable experts testified that hand writing evidence found on a registration card in a Paris hotel where the perpetrator stayed did not belong to Diab.

Twenty-three organizations in France including those representing the victims of the Paris bombing joined the prosecution in appealing the judges ‘decision. Three years later, they were ultimately successful and a new trial was ordered for April 2023. By then Diab was back with his family mistakenly assuming that his ordeal had ended. 

Looming ahead is another trial starting April 3 in Paris. For the first time in his legal history Diab will remain ensconced in Ottawa while across the ocean a panel of judges at the Special Assize Court, which was established in 2019 to deal with terrorism and drug cases, will deliberate on the charges against him. They may potentially decide that the accused (not present in the courtroom) was responsible after all for the Paris bombing

What is known as a trial in absentia for the accused is not legal or constitutional in Canada but is permitted in some EU countries. Donald Bayne, Diab’s main Canadian lawyer says his client will be confronted with “a political trial” or “show trial.” 

Roger Clark confirms that Diab’s French lawyer can attend and cross examinate witnesses for their client before the Special Assize Court. With possibly different rules in an anti-terrorist court, that requires further clarification, he says.

It is what WILL BE presented as evidence by the prosecution before the Special Assize Court in April that is of concern to the Hassan Diab support committee. 

One scenario provided by Clark is that because the previous handwriting evidence was discredited by the 2018 judges, the prosecution “might concoct other ‘evidence’.’”

Another is that the discredited evidence is reintroduced. Here, the prosecutors will say ” the Juges d’instruction (i.e. the French judges responsible for the 2018 ruling) erred in not according sufficient weight to it in reaching their decision to exonerate Hassan ” 

“I can imagine that questions raised by the prosecution might focus on issues such as “reasonable doubt” or “balance of probabilities,” said Clark.

There is also the possible introduction in the Special Assize Court of secret French intelligence against Diab where torture may have been use in the interrogation of suspects. That kind of evidence is acceptable in a French judicial context but not in the Canadian legal system.

In the French justice system prosecutors have the status of a judge. Also, judges specializing in counter terrorism cases work closely in France with domestic intelligence services. 

“Raw intelligence (in France) is judicialized and turned into a formal statement in a file and has the status of evidence. I think that is problematic — relying on intelligence where it is unclear as to whether it has been verified, or under what conditions it was obtained. This makes it hard to test out its reliability,” said Jacqueline Hodgson.

“The offenses in terrorism cases in France are broadly defined and the evidentiary threshold is low,” she notes. 

“In the infamous “association des malfaiteurs” offence (France’s counter terrorism law), for example, this is broader than conspiracy and a kind of pre-attempt. The idea is to dismantle groups early on before any tangible threat was attempted. This is quite different from focusing on individual acts and behaviours,” Hodgson added.

Although the Special Assize Court has set aside most of April for Diab’s case, Clark predicts it is likely to be wrapped up quickly. The number of witness statements and cross examinations should be limited, he says, due to the absence of both a jury in the proceedings as well as the accused himself.

Clark said flatly that the verdict at the Special Assize Court is predetermined. “We do indeed fear that an expedited trial will result in a guilty verdict (for Hassan Diab). Such a verdict would be used by the French to ask for Hassan’s extradition to serve his sentence in France.”

The conviction by the Special Assize Court can be appealed to the European Court of Human Rights but this will be a lengthy and costly process, Clark added.

More immediately, it is expected by the Hassan Diab support committee that France will undertake a second extradition request towards Canada to have Hassan Diab returned upon his conviction in Paris in April.

Considering how much of a fiasco the first extradition turned out to be politically, the question is whether Canada would go ahead with a second extradition for Diab from France, using its same extradition law.

The Diab case originally started in 2008 when the RCMP police arrested Hassan Diab in Ottawa, following the first extradition request from France linking him to the Paris synagogue bombing. 

The evidence was thin from the start. Finally, in 2014, an Ontario judge ruled he was forced to send Diab to France despite weak evidence because of provisions in Canadian extradition law.

Diab’s lawyer Donald Bayne says the French authorities misled Canada. Rather than be tried after his arrival to France, Diab was kept imprisoned for three years while the French police continued a fruitless investigation to confirm the guilt of the man held in custody.

For that reason, the Hassan Diab support committee is lobbying the Canadian government to state unequivocally that Canada will reject a second extradition request for Diab from France.

However, the Attorney General David Lametti has chosen to remain silent since France has not yet asked for Diab’s return.

One positive result of the lobbying by the Hassan Diab support committee in Ottawa is that the House of Commons Standing Committee on Justice and Human Rights has agreed to begin hearings on Canadian extradition law. 

What probably has helped to spur these hearings is that there have been other problematic extradition cases in Canada. 

One likely witness before the parliamentary committee is Rob Currie, a law professor at Dalhousie University and an extradition law specialist. He says the sharp difference between the Canadian and French justice systems should not normally be barrier to an extradition request from France.

The key, he continues, is the onus is on the Canadian federal minister of justice to make “better decisions” and not repeat the mistakes of the first extradition.”The problem with France is not so much the nature of its legal system as it is that they have persisted in persecuting Diab despite the fact that they had a very weak case in the first place and basically no evidence against him now; they are a bad extradition partner, as demonstrated by this case since there is no way they could prosecute him in good faith or request his extradition,” adds Currie.

This article first appeared on rabble.ca.