Right to legal assistance

Notion(s) Filing Case
Decision on Indigence - 24.06.2016 KARADŽIĆ Radovan
(MICT-13-55-A)

Pages 4-5:

RECALLING that the Registry has the primary responsibility for matters relating to remuneration of counsel in respect of which it enjoys a margin of appreciation;[1]

REITERATING, however, that the Appeals Chamber has the inherent power to review matters affecting the rights of persons in proceedings before it, including the right to have adequate time and facilities for the preparation of defence, pursuant to its statutory obligation to ensure the fairness of the proceedings;[2]

CONSIDERING that the inherent power to review such matters encompasses the power to make determinations concerning such matters where necessary to give full effect to statutory rights;[3]

RECALLING the statutory right of an accused to have legal assistance assigned to him where the interests of justice so require and without payment if he does not have sufficient means to pay for it;[4]

RECALLING that the Directive was established to ensure legal assistance to indigent accused in the most efficient, economical, and equitable manner in order to safeguard the rights afforded under the Statute and the Rules;[5]

CONSIDERING the UN Guidelines on Access to Legal Aid, which provide that “[a] court may, having regard to the particular circumstances of a person and after considering the reasons for denial of legal aid, direct that that person be provided with legal aid, with or without his or her contribution, when the interests of justice so require”;[6]

[…]

CONSIDERING that the burden of proof is on the applicant for legal aid to demonstrate his inability to remunerate counsel and that once the applicant has provided information regarding his inability to do so the burden of proof shifts to the Registry to prove otherwise based on the balance of probablities;[7]

[1] Decision on the Registry’s Request for Observations Regarding Preparation of the Notice of Appeal, 4 May 2016, p. 1 (“the Registry has the primary responsibility in the determination of matters relating to remuneration of counsel”); Nyiramasuhuko et al. Decision [The Prosecutor v. Pauline Nyiramasuhuko et al., Case No. ICTR-98-42-A, Decision on Ntahobali’s Request for Review of Registrar’s Decisions, 21 February 2014 (confidential and ex parte), public redacted version issued on 23 May 2016], para. 17; Tolimir Decision [Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-AR73.2, Decision on Zdravko Tolimir’s Appeal Against the Decision of Trial Chamber II on the Registrar’s Decision Concerning Legal Aid, 12 November 2009 (confidential and ex parte), public redacted version filed on 28 February 2013], paras. 8, 9 and referenced cited therein.

[2] See Article 19 of the Statute of the Mechanism (“Statute”). See also Nyiramasuhuko et al. Decision, para. 14; Prosecutor v. Nikola Šainović et al., Case No. IT-05-87-A, Decision on Nebojša Pavković’s Motion for Stay of Proceedings, 2 March 2010, para. 12; In Re. André Ntagerura, Case No. ICTR-99-46-A28, Decision on Motion for Leave to Appeal the President’s Decision of 31 March 2008 and the Decision of Trial Chamber III Rendered on 15 May 2008, 11 September 2008, para. 12.

[3] Nyiramasuhuko et al. Decision, para. 21 (“[t]he Appeals Chamber is of the view that judicial economy is best served in the particular circumstances of this case by disposing of the merits of this part of the Request for Review rather than remitting the matter to the Registrar”).

[4] Article 19(4)(d) of the Statute. See also Rule 43 of the Rules of Procedure and Evidence of the Mechanism.

[5] Directive [Directive on the Assignment of Defence Counsel, MICT/5, 14 November 2012], Article 1. The Appeals Chamber also recalls that, under Articles 6(B) and 6(C) of the Directive, an accused who lacks the means to remunerate counsel shall have the right to have counsel assigned to him and paid for by the Mechanism and that, for an accused who has the means to partially remunerate counsel, the Mechanism shall pay that portion of his defence costs which the accused does not have sufficient means to cover, as determined in accordance with the Registry Policy for Determining the Extent to which an Accused is able to Remunerate Counsel.

[6] UN Guidelines on Access to Legal Aid, para. 41(e).

[7] Prlić et al Decision [Prosecutor v. Jadranko Prlić et al., Public Redacted Version of the 25 July 2013 Decision on Slobodan Praljka’s Motion for Review of the Registrar’s Decision on Means, 28 August 2013], para. 35; Kvočka et al. Decision [Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Decision on Review of Registrar’s Decision to Withdraw Legal Aid from Zoran Žigić, 7 February 2003], para. 12.

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