Counsel assignment, qualifications, and remuneration | UJEDINJENE NACIJE | Međunarodni rezidualni mehanizam za krivične sudove

Defence

Assignment of Counsel and Legal Aid

All suspects and accused persons who demonstrate their indigence are entitled to the assignment of counsel, which is paid for by the Mechanism (including requisite support staff). For more information, please visit the page on the right to a defence. Before such counsel can be assigned, however, they must satisfy requirements of the Mechanism, as detailed below.

Types of Defence Counsel and Qualification Requirements

In accordance with the Mechanism’s Statute (Statute), the Rules of Procedure and Evidence (Rules), the Directive on the Assignment of Defence Counsel (Directive), and the Code of Professional Conduct (Code), defence counsel are required to meet certain qualification requirements before they can be appointed or assigned to represent an accused. Further, and based on the Rules, there are four distinct categories of defence counsel, as follows.

Rule42(A) Appointed Counsel are lawyers privately engaged to represent a suspect or accused before the Mechanism and who receive no legal aid funding. Appointed Counsel must fulfill the following qualification requirements:
- Admission to practice law in a State (or, serves as a university professor of law);
- Written and oral proficiency in one of the two working languages of the Mechanism*;
- Be a member in good standing of the Association of Defence Counsel practicing before International Courts and Tribunals (ADC-ICT);
- Not been found guilty in any disciplinary proceedings at a national or international forum, or pursuant to the Code;
- Not been found guilty in relevant criminal proceedings;
- 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
- 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 are lawyers who have indicated their availability and willingness to be assigned by the Registrar under the legal aid system to represent indigent accused, and have been placed on the so-called Rule 43 List. They must fulfill the following additional requirements:
- Possess established 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 (7) 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 suspect or accused who lacks the means to remunerate Counsel, under the terms set out in the Directive.
Rule 43(C) Duty Counsel are lawyers who have been placed on the list of counsel readily available for assignment to an accused for the purposes of an initial appearance (a/k/a, the Duty Counsel List). In addition to the requirements of Rule 42 and 43(B), Duty Counsel must fulfill these additional requirements:
- 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.
Finally, Pro Bono Counsel for convicted, acquitted or released persons must fulfill the minimum requirements for Appointed Counsel practicing before the Mechanism pursuant to Rule 42(A) (see above), with the exception of the requirement to be a member of the ADC-ICT.

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:

A duly completed Application Form for Admission of Counsel to the Rule 43 list;
A certificate of good standing issued by the (ADC-ICT);
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 (i.e., a certificate of no criminal proceedings issued by the relevant national authorities);
Two duly completed reference forms, including the names and addresses of the two referees (who need to practice in the field of criminal law, international humanitarian law, international human rights law or international criminal law), who are competent to advise the Registrar as to the applicant’s professional competence in these fields;
For applicants whose native language is neither English nor French, he/she may be requested to take a language proficiency test at the Mechanism (in person or remotely)**;and,
any other information which the applicant deems relevant.

Please note, that the Registry requires up to date copies of the documents identified above (i.e., no more than one (1) year old), and it reserves the right to request original or certified copies of documents as may be required to verify an application. If a document is originally written in any language other than English or French, a certified official translation into one of the Mechanism's official languages is also required. Applications with scanned copies may be emailed (to mictdefence[AT]un.org), while those containing original or certified copies should be sent by registered mail or courier to:

Arusha Branch	The Hague Branch
International Residual Mechanism for Criminal Tribunals Haki Road, Plot No. 486 Block A, Lakilaki Area Arumeru District P.O. Box 6016, Arusha, Tanzania	International Residual Mechanism for Criminal Tribunals Churchillplein 1 2517 JW, The Hague, The Netherlands

Mechanism Legal Aid Policies

The Mechanism had adopted six (6) legal aid policies, which concern remuneration to the defence. Generally, all legal aid policies provide for remuneration of reasonable and necessary work performed by the defence team of an indigent or partially indigent accused. They are as follows:

For more information on regulations and policies related to defence counsel, please visit the Mechanism’s Documents page, here.

Code of Professional Conduct and Disciplinary Regime

The Code 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 practicing before International Courts and Tribunals (ADC-ICT). The ADC-ICT was formerly known as the Association of Defence Counsel practicing before the ICTY (ADC-ICTY) and has been representing counsel practicing before the ICTY since 2002. In December 2012, the ADC-ICTY was provisionally recognized by the Registrar of the Mechanism pursuant to Rule 42 of the Rules, and then officially recognized in August 2015 as an association of defence counsel practicing before the Mechanism. As of 1 June 2017, the ADC-ICT officially changed its name from ADC-ICTY, and was officially recognized by the Registrar under the new name on 16 June 2017. The aim of the ADC-ICT, 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 ADC-ICT operates, inter alia, within the framework of the Mechanism’s Directive and Code. For more information concerning the ADC-ICT, see ADC-ICT website.

* 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.

** Please be aware that in accordance with Article 15(A)(ii) of the Directive, 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.

***The SRA 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 SRA 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.