The success and credibility of the ICTR and ICTY have depended greatly on the crucial role that a competent and robust defence plays in ensuring the right of the accused to a fair trial, and in upholding the principle of equality of arms between the Prosecution and the Defence.
The right to a fair trial is a fundamental human right, and a basic principle of criminal justice. It applies equally to accused before the Mechanism, which will continue the jurisdiction, rights and obligations and essential functions of the ICTR and ICTY.
A competent and vigorous defence contributes to the Mechanism’s credibility and legitimacy in the eyes of the international community.
The Right to Defence Counsel
All persons indicted by the ICTR, the ICTY or the Mechanism and appearing before the Mechanism, as well as all persons detained under the authority of the Mechanism have the right to be represented by defence counsel. If an accused wishes to be represented by defence counsel, the accused can either retain his own counsel or, if the accused has been found indigent by the Registrar, be assigned one at the expense of the Mechanism. This and other fundamental rights of the accused are enshrined in Article 19 of the Mechanism’s Statute, and further regulated in the Rules of Procedure and Evidence, and the Directive on the Assignment of Defence Counsel, ensuring that the legal assistance provided to the accused is effective and of the highest quality.
Three types of defence counsel
The Mechanism Rules of Procedure and Evidence provide for three types of defence counsel:
- Appointed Counsel pursuant to Rule 42: lawyers engaged by a suspect or an accused to represent him or her before the Mechanism;
- Assigned Counsel pursuant to Rule 43(B): lawyers who have indicated their availability and willingness to be assigned by the Registrar to represent indigent accused and have been placed on the so-called Rule 43 List;
- Duty Counsel pursuant to Rule 43(C): lawyers who are Rule 43(B) assigned counsel and have been placed on the list of counsel readily available for assignment to an accused for the purposes of an initial appearance (the Duty Counsel List).
In accordance with the Statute, the Rules, the Directive and the Code of Professional Conduct, defence counsel are required to meet certain qualification requirements before they can be appointed or assigned to represent an accused.
Rule 42 Appointed Counsel must fulfill the following qualification requirements:
- is admitted to practice law in a State or is a university professor of law;
- has written and oral proficiency in one of the two working languages of the Mechanism*;
- is a member in good standing of a recognized association of counsel practicing at the Mechanism**;
- has not been found guilty in any disciplinary proceedings at a national or international forum or pursuant to the Mechanism’s Code of Professional Conduct;
- has not been found guilty in relevant criminal proceedings;
- has not engaged in conduct which is dishonest or otherwise discreditable to a Counsel, prejudicial to the administration of justice, or likely to diminish public confidence in the Mechanism or in the administration of justice, or otherwise bring the Mechanism into disrepute; and
- has not provided false or misleading information in relation to his qualifications and fitness to practice or failed to provide relevant information.
Rule 43(B) Assigned Counsel must fulfill the following additional requirements (Rule 43 List):
- Possess competence in any or all of the following subjects: criminal law, international criminal law, international humanitarian law and international human rights law;
- Have at least seven years of experience as a judge, prosecutor, attorney, or in some other capacity in criminal proceedings; and
- Indicate their availability and willingness to be assigned to a Mechanism detainee who lacks the means to remunerate Counsel, under the terms set out in the Directive.
Duty Counsel must fulfill the following requirements in addition to the requirements of Rule 42 and 43(B) (Duty Counsel List):
- Be situated within reasonable proximity to the detention facility of the relevant branch of the Mechanism; and
- Be available to attend the detention facility of the relevant branch or represent the accused in the event of being summoned.
Application to practice at the Mechanism (Admission to the Rule 43 List)
Those willing to represent indigent accused or suspects as Counsel and/or Duty Counsel shall supply to the Registrar the following documents:
- Duly completed Application Form for Admission of Counsel to the Rule 43 list;
- a letter expressing the applicant’s willingness and availability to be assigned as counsel to indigent accused/suspects, and requesting admission to the Rule 43 list;
- a detailed and updated curriculum vitae also reflecting the applicant’s current status, and, as far as possible, indicating contact details of current and previous employers. The curriculum vitae should also clearly show whether the applicant possesses 7 years of relevant experience, whether as a judge, attorney or in some other capacity, in criminal proceedings;
- a certificate of professional qualification issued by a competent professional body, including a recent certificate of good standing indicating any current and/or past disciplinary proceedings;
- evidence that the applicant has not been found guilty in criminal proceedings (Certificate of no criminal proceedings issued by the relevant national authorities);
- names and addresses of two referees who practice in the field of criminal law, international humanitarian law, international human rights law or international criminal law, and who are competent to advise the Registrar as to the applicant’s professional competence in these fields;
- for applicants whose native language is not English or French, a certificate from a language institute or other evidence of proficiency in English or French***;
- any other information which the applicant deems relevant.
Please note, that the Registry generally requires up to date original or certified copies of documents. Scanned copies of documents may be emailed in advance of the presentation of originals, if necessary. Applications containing original or certified copies should be sent by registered mail or courier to:
|Arusha Branch||The Hague Branch|
Mechanism for International Criminal Tribunals
Mechanism for International Criminal Tribunals
Assignment of Counsel and Legal Aid
Accused persons who demonstrate that they cannot afford to pay for counsel, either in whole or in part, are entitled to the assignment of counsel, paid for by the Mechanism. Before counsel can be assigned to indigent or partially indigent accused they need to be admitted to the Rule 43 List as outlined above. Further, the Mechanism provides adequate remuneration for support staff assisting the assigned defence counsel. If the accused has means to remunerate counsel partially, the Mechanism will only cover that portion of the costs of the defence which the accused cannot bear.
The Legal Aid System of the Mechanism harmonizes and builds on the practices and policies of the ICTR and ICTY. On 4 March 2013, the Mechanism adopted its first policy related to legal aid: The Remuneration Policy for Persons Representing Indigent Accused in Appeals Proceedings before the Mechanism, which is based on a lump-sum payment system and provides for the remuneration of reasonable and necessary work performed by the defence team of an indigent or partially indigent accused during Appeal.
In accordance with Article 19(4)(d) of the Statute, an accused person may elect to represent himself in person. Where the Chamber seised of the case recognizes the accused’s right to self-representation and allows the accused to conduct his own defence, the Mechanism (through the Registrar) ensures through the provision of adequate facilities so that the accused is in a position to exercise this right effectively.
Furthermore, the Registrar has adopted a “Remuneration Scheme for Persons Assisting Indigent Self-represented Accused”. The Remuneration Scheme is influenced by the jurisprudence of the ICTY and the ICTR, including the ICTY Appeals Chamber’s decision of 11 September 2007 in the Prosecutor v. Krajišnik case, which held that an indigent accused who chooses to exercise his right to self-representation may receive funding for legal associates. In line with the Remuneration Scheme, the Registrar may assign legal advisers and other support staff such as case managers, investigators and language assistants to assist the self-represented accused in the preparation of his case and to facilitate his participation in the proceedings. Additionally, the Registrar may assign experts where special expertise is needed, permit privileged communication with certain categories of defence team members and provide office space and equipment to the defence team.
Code of Professional Conduct and Disciplinary Regime
The Code of Professional Conduct prescribes standards of conduct in order to ensure that defence counsel practicing before the Mechanism maintain the highest level of professional ethics. The Code provides for a robust disciplinary regime to ensure compliance by individual counsel with the necessary standards of professionalism, competence, diligence and honesty. Professional misconduct by counsel can lead to sanctions including reprimands, fines, suspension or a ban from practicing before the Mechanism.
Association of Defence Counsel (ADC) Practicing Before the Mechanism
Defence Counsel practicing before the Mechanism are represented by the ADC-ICTY, which since September 2002 has been representing Counsel practicing before the ICTY.
The ADC-ICTY, now the Association of Defence Counsel Practising Before the ICTY and Representing Counsel Before the MICT, was provisionally recognised in December 2012 and subsequently officially recognised in August 2015 as an association of defence counsel practicing before the Mechanism.
The aim of the Association, which operates independently from the Mechanism, is to ensure a high quality defence for the accused and to make collective representations to the organs of the Mechanism on behalf of all defence counsel involved in Mechanism cases. The Association also serves in the context of the Code of Professional Conduct for Counsel Appearing Before the Mechanism.
* If the Registrar deems it in the interest of justice, he may waive this requirement, as provided in Rule 42(B) of the Rules and Article 14(C) of the Directive. Counsel admitted without the language requirement are only eligible for assignment as co-counsel, pursuant to Article 16(D) of the Directive.
** According to the Registrar’s decision of 24 Aug. 2015, the Association of Defence Counsel Practicing before the ICTY (ADC-ICTY) was recognized as an association of counsel practicing at the Mechanism.
*** Please be aware that in accordance with Article 15(A)(ii) of the Directive on the Assignment of Defence Counsel, the Registrar may require such applicants to demonstrate their language ability by means of a language proficiency test. Furthermore, with regard to the requirement of written and oral proficiency in one of the two working languages of the Tribunal, please be informed that a person who does not fulfill this criterion but who speaks a language spoken in the territory over which the Tribunal has jurisdiction, and who fulfills all other requirements as set out herein, may nevertheless be admitted to the list, if the Registrar deems it justified (provided for under Article 14(C) of Directive). Such counsel, however, can only be assigned as a co-counsel in accordance with Article 16(D)(ii) of the Directive.