Legal aid

Notion(s) Filing Case
Contempt Appeal Judgement - 30.05.2013 ŠEŠELJ Vojislav
(IT-03-67-R77.4-A)

39. The Appeals Chamber recalls that Article 21(4)(d) of the Statute does not support the right to legal assistance for an accused who elects to self-represent.[1] The principle of equality of arms referenced in Article 21(1) of the Statute does not imply that an indigent self-represented accused should necessarily be provided with funded legal aid. By his very choice to self-represent, he is asserting his ability to conduct his case without legal assistance and therefore "must accept responsibility for the disadvantages this choice may bring".[2] […]]

[1] Prosecutor v. Momčilo Krajišnik, Case No. IT-OO-39-A, "Decision on Krajišnik Request and on Prosecution Motion,

 11 September 2007, ("Krajišnik Decision"), para. 40.

[2] Krajišnik Decision, para. 41.

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Notion(s) Filing Case
Decision on Referral - 04.09.2006 TODOVIĆ & RAŠEVIĆ
(IT-97-25/1-AR11bis.1 & IT-97-25/1-AR11bis.2)

The Referral Bench is not legally required to make a finding on whether the funding of the accused’s defence would be adequate to cover the lead counsel’s fees, trial teams, co-counsel and investigations. See para. 56:

56. The Appeals Chamber finds that the Appellant has failed to show that the Referral Bench erred by focusing on whether there was a legal framework in place in BiH. The Referral Bench correctly considered whether it was satisfied that the Appellant would receive a fair trial by establishing that the legislation in BiH allows for adequate time and facilities for the preparation of a defence. That is all it was required to do pursuant to Rule 11bis of the Rules.

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ICTR Rule Rule 11 bis ICTY Rule Rule 11 bis
Notion(s) Filing Case
Decision on Adequate Facilities - 07.05.2009 KARADŽIĆ Radovan
(IT-95-5/18-AR73.2)

16. The Krajišnik Appeal Decision recognised that “[t]o the extent that the Registry requires or encourages indigent self-representing accused to coordinate their defences through designated legal associates”, it “should adequately reimburse the legal associates for their coordinating work and for related legal consultation.”[1] However, it concluded that “[s]uch funding should not be comparable to that paid to counsel for represented accused (particularly since work such as the drafting of written filings should be considered the responsibility of the self-representing accused)”.[2] While the Krajišnik Appeal Decision does contemplate the provision of legal consultation by a legal associate, it makes clear that this is not to be equated with the comprehensive work of counsel which is to be undertaken by the accused himself. The mere fact that a legal associate may provide legal consultation does not necessarily imply that he or she will undertake the functions and tasks for which counsel is normally responsible. Indeed, much of the work undertaken by legal assistants in a regular defence team, such as researching and preparing memoranda on legal issues, could fall within the meaning of legal consultation yet their role is to support and assist the assigned counsel.

17. While the provision of legal consultation would normally imply that a legal associate be either admitted to practice law in a state or be a university professor of law, it does not a priori require that the legal associate possess the full expertise and experience required under Rule 45 of the Rules. Indeed, the Krajišnik Appeal Decision stated that “[t]he Registry may impose additional criteria on designated legal associates who seek funding from the Tribunal (comparable to the Registry’s ability to require that Tribunal-funded counsel meet the requirements of Rule 45 of the Rules as well as of Rule 44 of the Rules)”[3] but it did not require the Registry to do so.

18. The Remuneration Scheme which followed from the Krajišnik Appeal Decision does in fact require that legal associates be “a member of the Association of Defence Counsel Practicing before the ICTY” (“ADC”).[4] Such membership requires that applicants “possess at least seven years of relevant experience, whether as a judge, prosecutor, attorney or in some other capacity, in criminal proceedings.”[5] On its face this requirement implies that a legal associate must possess experience comparable to that of assigned counsel, thereby suggesting that if this is a comparable minimum experience requirement, such a legal associate should in fairness be compensated comparably to an assigned counsel. However, experience alone does not determine the rate of pay; the functions and tasks undertaken are also important as is the level of responsibility assumed. For example, the Appeals Chamber notes that the Directive on the Assignment of Defence Counsel contemplates the possibility of legal assistants with 10 years or more of experience.[6] A legal assistant with such experience could thus be considered to have comparable experience to counsel but is not paid at the same rate of pay as counsel because he or she fulfils a different function on the defence team.

20. In any event, contrary to the Appellant’s arguments, the rationale for the ADC membership requirement does not appear to be a reflection on the type of work and tasks expected to be undertaken by legal associates. As noted by the Trial Chamber, this is further supported by the fact that the Registrar has demonstrated flexibility in the application of the Remuneration Scheme, in particular with regard to the qualification requirements under of the Remuneration Scheme.[7]

23. The Krajišnik Appeal Decision is not explicit as to whether it was referring to the volume or the rate of pay when it concluded that legal associates’ pay “should not be comparable to that paid to counsel for represented accused” and left open what would constitute adequate reimbursement.[8] However, the Appeals Chamber recalls that it has already concluded that there was no error in the Trial Chamber’s finding that the Krajišnik Appeal Decision did not require the Registrar to fund “high-level” assistants[9] particularly given the Krajišnik Appeal Decision’s finding that “where an accused elects to self-represent, he is asserting his ability to conduct his case without legal assistance [...]”.[10] With regard to the Appellant’s submission that “even if an accused assumes full responsibility for written filings, there are hundreds of other tasks which […] require the expertise of experienced lawyers”[11], the Appeals Chamber considers that the Krajišnik Appeal Decision’s reference to the Appellant drafting his own written filings was merely an example of the many tasks he is expected to undertake himself given his choice to be self-represented. While the Appeals Chamber acknowledges that by reason of his detention there are certain tasks normally undertaken by counsel which he will not be able to complete himself, in general a self-represented accused is expected to undertake all the tasks normally assumed by counsel. Acknowledgement of an appellant’s disadvantage based on his detention can reasonably be understood as one of the reasons for the provision of legal associates, but should not be confused with the role of counsel. In light of these findings, the Appeals Chamber concludes that the Appellant has failed to show that it was unreasonable for the Trial Chamber to conclude based on the Krajišnik Appeal Decision that the Registry was not required to pay legal associates at the same rate as counsel for a represented accused.

[1] Krajišnik Appeal Decision, para. 42.

[2] Krajišnik Appeal Decision, para. 42.

[3] Krajišnik Appeal Decision, para. 42 (emphasis added).

[4] Remuneration Scheme [Remuneration Scheme for Persons Assisting Indigent Self-Represented Accused”, a Registry policy promulgated on 28 September 2007], para. 5.1(A). Contrary to the Appellant’s submissions (Appeal, paras 23-24), the Remuneration Scheme does not require that at least one member of the defence team be a qualified lawyer with a minimum of seven years experience and subject to a disciplinary regime. The Remuneration Scheme only requires the inclusion of a case manager on the team (see Remuneration Scheme, para. 3.2). The Appeals Chamber notes that while in Prosecutor v. Vojislav [ešelj, Case No. IT-03-67-PT, Decision on the Financing [of] the Defence of the Accused, 30 July 2007, paras 60-62, the Pre-Trial Judge in that case stated that at least one member of the defence team had to meet the qualifications required by Rule 45, this requirement was not retained in the Krajišnik Appeal Decision, despite the Appeals Chamber’s consideration of that decision (see Krajišnik Appeal Decision, fns 98, 101).

[5] Constitution of the Association of Defence Counsel Practicing Before the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, Article 3.2.c.

[6] Directive on the Assignment of Defence Counsel, Directive No. 1/94, Annex 1.

[7] Impugned Decision, para. 34.

[8] Krajišnik Appeal Decision, para. 42.

[9] See supra, para. 14.

[10] Krajišnik Appeal Decision, para. 41.

[11] Appeal, para. 35.

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ICTR Statute Article 20(4)(d) ICTY Statute Article 21(4)(d) ICTR Rule Rule 45 ICTY Rule Rule 45
Notion(s) Filing Case
Referral Decision - 16.12.2011 UWINKINDI Jean
(ICTR-01-75-AR11bis)

71. The Appeals Chamber recalls that a Referral Chamber must “satisf[y] itself that the State would supply defence counsel to accused who cannot afford their own representation” and is “not obligated […] to itemize the provisions of the [State’s] budget” once it has learned there is financial support for that representation.[1] The Referral Chamber explicitly noted that: the Transfer Law guarantees an indigent accused the right to legal aid;[2] Rwanda has budgeted funds for this purpose;[3] and this was all that the Referral Chamber was required to consider in finding that Mr. Uwinkindi would be guaranteed adequate representation.[4] The Appeals Chamber can also identify no error in the Referral Chamber’s reliance on the provisions of the Transfer Law in addressing Mr. Uwinkindi’s concerns related to the difficulties of working in Rwanda.[5]

[1] See Stanković Appeal Decision, para. 21.

[2] Impugned Decision, para. 135, citing Article 13(6) of the Transfer Law.

[3] Impugned Decision, para. 141.

[4] Impugned Decision, para. 144.

[5] See Impugned Decision, paras. 152-161. The Appeals Chamber notes that the examples cited by Mr. Uwinkindi are not related to trials conducted in accordance with the Transfer Law and its accompanying immunities and protections. The Appeals Chamber further considers that Mr. Uwinkindi’s suggestion that the Transfer Law would not be applied in practice is purely speculative and is dismissed. See [Defence Appeal Brief Against the Decision on the Prosecutor’s Request for Referral to the Republic of Rwanda, 8 September 2011], paras. 67, 68.

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ICTR Rule Rule 11 bis ICTY Rule Rule 11 bis
Notion(s) Filing Case
Decision on Modalities of Self-Representation - 11.09.2007 KRAJIŠNIK Momčilo
(IT-00-39-A)

Paragraphs 40 and 41 dealt with the issue of whether a self-represented accused is entitled to legal aid. In accordance with past practice, the Appeals Chamber held that an accused faces a binary choice of either self-representing or availing himself of legal aid.

40. In the Appeals Chamber's view, Article 21(4)(d) of the Statute does not support the proposition than an accused who elects to self-represent is nonetheless entitled to legal aid. Article 21(4)(d) gives the accused the right “to defend himself in person or through legal assistance of his own choosing”. We have held that these two options stand in “binary opposition”.[1] An accused who chooses to self-represent is not entitled to legal assistance. Hence, he is not entitled to the subsidiary right mentioned later in Article 21(4)(d) to have legal assistance paid for by the Tribunal if he is indigent.

41. The question nonetheless remains whether some other provision of the Statute or source of law requires the Registry to provide an indigent self-representing accused with funded legal aid. Mr. Krajišnik suggests that the principle of equality referenced in Article 21(1) of the Statute and the fair trial rights referenced in Article 21(2) of the Statute have this effect.[2] The Appeals Chamber does not find these arguments convincing.  While Article 21(1) may require that accused in similar circumstances receive roughly comparable treatment, it does not require that an accused who opts for self-representation receive all the benefits held by an accused who opts for counsel. To the contrary, as “part of the choice to self-represent, Mr. Krajišnik must accept responsibility for the disadvantages this choice may bring”.[3] Moreover, the Appeals Chamber considers that where an accused elects to self-represent, he is asserting his ability to conduct his case without legal assistance and thus Tribunal funding for legal aid for him can be presumed to be unnecessary to the conduct of a fair trial. To the extent that the accused lacks the ability to conduct his own case and his self-representation is thus “substantially and persistently obstructing the proper and expeditious conduct of his trial”, then the remedy is restriction of his right to self-representation.[4]  To allow an accused to self-represent and yet also to receive full legal aid funding from the Tribunal would, as the saying goes, let him have his cake and eat it too.

The Appeals Chamber found that funding of legal associates presented a slightly different situation and that funding for such associates should be available.

42. [T]he Appeals Chamber considers whether Article 21(4)(b) of the Statute requires the Tribunal to provide some funding for the legal associates of self-represented accused.  The Appeals Chamber agrees with the Registry that the term “facilities” in Article 21(4)(b) does not normally encompass legal assistance. Nonetheless, the Appeals Chamber considers that in seeking otherwise to give effect to Article 21(4)(b) for a self-represented accused, the Registry has relied heavily on the concept of designated legal associates. To the extent that the Registry requires or encourages indigent self-representing accused to coordinate their defences through designated legal associates, it is appropriate for the Tribunal to provide some funding for such associates. Such funding should not be comparable to that paid to counsel for represented accused (particularly since work such as the drafting of written filings should be considered the responsibility of the self-representing accused), but nonetheless should adequately reimburse the legal associates for their coordinating work and for related legal consultation.

[1] Slobodan Milošević v. Prosecutor, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Counsel, 1 November 2004 (“Milošević Decision”), para 11.  See also Nahimana et al. v. Prosecutor, Case No. ICTR-99-52-A, Scheduling Order for Appeals Hearing and Decision on Hassan Ngeze’s Motion of 24 January 2006, 16 November 2006, p. 3.

[2] The Appeals Chamber notes that while the Šešelj Decision does not clearly ground its holding that an indigent self-represented accused is entitled to funded legal aid in any particular provision of the Statute, it appears to draw on these same principles.  See Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-PT, Decision on the Financing [of] the Defence of the Accused, 30 July 2007, paras 42, 49-50. […]

[3] See Prosecutor v. Slobodan Milošević, Case No. IT-02-54-AR73.6, Decision on the Interlocutory Appeal by the Amici Curiae against the Trial Chamber Order Concerning the Presentation and Preparation of the Defence Case, 20 January 2004, para. 19 (“There is no doubt that, by choosing to conduct his own defence, the Accused deprived himself of resources a well-equipped legal defence team could have provided.  A defendant who decides to represent himself relinquishes many of the benefits associated with representation by counsel”). 

[4] Prosecutor v. Vojislav Šešelj, Case No. IT-03-67-AR-73.3, Decision on Appeal against the Trial Chamber’s Decision on Assignment of Counsel, 20 October 2006, para. 20.  

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Notion(s) Filing Case
Decision on Extension of Assignment of Counsel - 27.05.2016 NIYITEGEKA Eliézer
(MICT-12-16-R)

8.       […] [A] general allotment of funds under the Mechanism’s legal aid system does not itself set an outer limit on the time frame that an assigned counsel has to prepare a request for review.[1] […]

See also para. 5

[1] See supra para. 5.

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

Page 4:

RECALLING the Remuneration Policy, which provides that “[f]or the purpose of this Policy, the [Mechanism] shall recognise the determination of indigency of an Accused made by the ICTR and the ICTY, unless new information is obtained which establishes that the Accused has sufficient means to remunerate Counsel”;[1]

NOTING that this provision of the Remuneration Policy addresses only a situation where a determination was made that an accused person is indigent, as is clear from the last part of the provision which refers to “new information” establishing that the accused person “has sufficient means” to remunerate counsel, not a situation where the determination was that an accused person is not indigent;

CONSIDERING, therefore, that the Remuneration Policy does not require the Registry to recognise a determination made by the ICTY that an accused is able to contribute to the costs of his defence in part;

[1] Remuneration Policy [Remuneration Policy for Persons Representing Indigent Accused in Appeals Proceedings before the Mechanism for International Criminal Tribunals, 21 March 2016], para. 7.

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Other instruments Remuneration Policy for Persons Representing Indigent Accused in Appeals Proceedings before the Mechanism for International Criminal Tribunals, para. 7
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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