Remuneration

Notion(s) Filing Case
Decision on Motion for Stay - 02.03.2010 ŠAINOVIĆ et al.
(IT-05-87-A)

10. Pursuant to Article 24(C) of the Directive on Assignment of Defence Counsel[1] (“Directive”),

[d]uring appellate proceedings, assigned counsel and assigned members of the defence team shall be remunerated on the basis of a maximum allotment of working hours paid at a fixed hourly rate as established in Annex I to this Directive, for the work reasonable and necessary to the preparation and presentation of the defence case.

The amount of such maximum allotment depends principally on the phase of the case and its complexity.[2] In determining the latter, the Registry generally takes into account a number of factors, including: the number and nature of the grounds of appeal; whether there is a cross-appeal; whether the appeal raises any novel legal issues; the complexity of the legal and factual issues involved; the number of documents that have to be reviewed; and the sentence imposed by the Trial Chamber. At present, different allocations of hours are as follows: Level 1 (difficult) with 1050 counsel hours and 450 support staff hours; Level 2 (very difficult) with 1400 counsel hours and 600 support staff hours; and Level 3 (extremely difficult) with 2100 counsel hours and 900 support staff hours.[3] In addition, all appeals hearing hours for counsel are reimbursed.

12. The Appeals Chamber confirms, however, that the present decision will not address the issue of allocating additional hours to Pavković’s Defence team given that it is the Registry which has the primary responsibility in the determination of matters relating to remuneration of counsel.[4] […]

14. […] [T]the Appeals Chamber reiterates that Pavković’s Counsel agreed to represent him in full awareness of the system of remuneration for assigned counsel and is bound thereby.[5] In a letter addressed to the then Acting Head of OLAD and attached to the Motion (“Letter to OLAD”), Pavković’s Counsel argues that the understanding that he “accepted this appeal assignment with full understanding that resources were limited and that [he] could not be paid for each hour worked is incorrect”. He asserts that he was in fact “never formally assigned to handle this appeal [which] just carried over from the trial”.[6] The Appeals Chamber finds these claims untenable.[7] Pavković’s Counsel is therefore under the obligation to continue working in his client’s best interests until the representation is terminated (with the completion of the proceedings or an approved withdrawal).

[1] IT/73/Rev.11, 11 July 2006.

[2] The Appeals Chamber notes that Pavković’s statement that payment on appeal is made on an hourly basis (Reply to the Registry’s Submission, para. 5) is therefore not entirely correct, as the applicable system implies the remuneration for validly billed hours of work within a maximum allotment (see Registry’s Submission, Annex VI).

[3] The Appeals Chamber notes that in the history of the Tribunal, only two cases on appeal were considered to be “Level 2” and none has so far been qualified as “Level 3”.

[4] E.g. Prosecutor v. Milan Milutinović et al., Case No. IT-99-37-AR73.2, Decision on Interlocutory Appeal on Motion for Additional Funds, 13 November 2003 (“Decision of 13 November 2003”), para. 19.

[5] Cf. Decision of 13 November 2003, para. 22, referring to Article 9(C) of the Code of Professional Conduct for Counsel Appearing Before the International Tribunal, IT/125 Rev. 1, 12 July 2002. The Appeals Chamber notes that the current version of the said document as amended on 22 July 2009 and promulgated on 6 August 2009, IT/125 Rev. 3 (“Code of Conduct”) contains the same provision.

[6] Letter to OLAD. See also, Reply to the Registry’s Submission [General Pavković’s Reply to Registry Submission Pursuant to Rule 33(B) Concerning General Pavković’s Motion for Stay of Proceedings Pending Action by the Registrar, 26 February 2010], paras 3-5.

[7] See Registry’s Submission substantiating the assignment procedure of Pavković’s Counsel, including the appeal proceedings and the fact he was expressly notified that “in the event [Pavković] (or the Prosecution) wished to file an appeal, the appeal phase would be preliminary ranked at level 1 complexity pending further information from Mr. Ackerman and consultation with the Appeals Chamber” (para. 7). Having represented Pavković for almost a year in these appeal proceedings on this basis and with an upgraded level of complexity, and accepted full payment for counsel and support staff hours, Pavković’s Counsel cannot plausibly argue that he has never been assigned to represent his client on appeal in full awareness of the remuneration schemes (paras 4-16; Annex I-IV). See also, Directive [Directive on Assignment of Defence Counsel, IT/73/Rev.11, 11 July 2006], Articles 16(B) and 16(C).

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Other instruments Code of Professional conduct for Counsel Appearing Before the International Tribunal.
Directive on the Assignment of Defence counsel (ICTY): Article 16; Article 24(C).
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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