DEFENCE BEFORE THE ICTY

1. DEFENCE BEFORE THE ICTY Davor Lazić 23 January 2014

2. The ICTY Since its establishment in 1993 the ICTY is made up of three main branches: The CHAMBERS; the REGISTRY; and the OFFICE OF THE PROSECUTOR.

3. ICC - is composed of four organs: Presidency; Judicial Divisions; Office of the Prosecutor Registry + Other Offices The Court also includes a number of semi-autonomous offices such as the Office of Public Counsel for Victims and the Office of Public Counsel for Defence. These Offices fall under the Registry for administrative purposes but otherwise function as wholly independent offices.

4. The STL The Special Tribunal for Lebanon is a tribunal of international character. The STL was inaugurated on 1 March 2009 and has four organs: Chambers; The Office of the Prosecutor; The Registry; and The Defence Office.

5. Defence as an Organ of the Tribunal • The ICTY: NO ( 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 ) • ICC: Semi-autonomous Office (International Criminal Court) • The STL: YES (Special Tribunal for Lebanon)

6. Defence before the ICTYBefore: • As in any other court of law, the Defence plays a crucial role at the ad hoc Tribunals. An individual accused of a crime is presumed to be innocent, is entitled to a fair trial without undue delay and to the assistance of counsel and “adequate time and facilities for the preparation of his defence”. The right of the accused to a fair trial is not only a fundamental human right but also one of the basic principles of criminal justice. • During the early years at the ICTY, Defence counsel were essentially excluded from the work of the ICTY, other than that required for the preparation of their own individual cases. Defence counsel had no individual or collective voice in the development of ICTY rules, procedures and practices, though the Defence was and remains an essential component of the trial process. • Defencecounsels were not allowed access to the ICTY building excepts for the public lobby, one Defence room and the courtrooms when trial proceedings were taking place. Defence counsel were not, for example, allowed access to the cafeteria or the law library. The Defence room had limited facilities, though it did include telephones, computers and a photocopying machine. • A major challenge faced by Defence counsel, in addition, is that they do not have the opportunity of entering into and remaining in an established law office throughout the pre-trial and trial proceedings. In contrast, lawyers from the ICTY Office of the Prosecutor (ICTY OTP) are able to work at the seat of the ICTY, with the guidance and assistance of experienced trial lawyers, appellate lawyers, and trial support staff located in that office.

7. Defence before the ICTYNow: • These circumstances have improved gradually over the years as the Defence gained an increased opportunity to contribute to the resolution of issues which directly affect the Defence function at the ICTY. This progress was made with the substantial support and assistance of the Office of Legal Aid and Detention Matters (OLAD), and included increased access to resources critical to the ability of Defence counsel to adequately represent the accused. • In 2002, the Association of Defence Counsel Practising Before the ICTY (ADC) was established as a result of a rule change by the ICTY judges, requiring that all Defence counsel appearing before the Chambers belong to an officially recognised association of counsel. • In September 2002, pursuant to a decision made at the July 2002 plenary, the Association of Defence Counsel was established. • The ICTY Rules of Procedure and Evidence (ICTY RPE) were amended to require that each Defence counsel “is a member in good standing of an association of counsel practising at the Tribunal recognised by the Registrar”. The Registrar officially recognised the ADC-ICTY on 4 October 2002. This provision meant that compulsory membership in the ADC-ICTY was required before counsel could practise at the ICTY and that they had to remain in good standing under the terms of the Constitution of the ADC-ICTY. The ADC-ICTY was established under Dutch law as an independent Bar Association and registered with the Dutch authorities, therefore remaining independent from the ICTY itself.

8. Defence before the ICTYNow: • The ADC-ICTY has managed to build bridges between the Defence and the ICTY which in turn has given the Defence an increased participation in the functioning of the ICTY. As a result it has also been able to break down some of the perceived barriers between the three official organs of the ICTY and the Defence. • Although the ADC-ICTY is not institutionally an organ of the ICTY, in recent years the ICTY Registrar has involved the ADC in Tribunal-wide committees and projects. The Registrar, for example, now consults with the ADC prior to adopting major policies affecting the work of Defence teams. Notably, the ADC was consulted prior to adopting the pre-trial and trial legal aid policies. In addition, the ADC was involved in the complete review of the Directive on the Assignment of Defence Counsel in 2006. • However, despite the many achievements of the ADC-ICTY, it receives no funding from the ICTY budget and must survive on membership dues.

9. Legal Aid • The right to be represented by defence counsel, together with the presumption of innocence, is a fundamental right of all accused before the ICTY. • Proceedings against an accused before the Tribunal are serious and complex and thus require appropriate means for mounting a defence case. Typically, a defence team is composed of a lead counsel and co-counsel, and depending on the size of the case, the team can include case manager, legal assistant(s), investigator(s) and consultant(s). • When an accused claims indigence and requests the assignment of Tribunal-paid counsel, he/she is required to make full disclosure to the Registry of his/her means and assets, as well as those of members of his/her household.

If an accused is able to subsequently demonstrate that he/she lacks the means to remunerate counsel in whole or in part, he/she will be entitled to legal aid. Depending on the financial means of an accused, the Tribunal may cover the costs either in whole or in part of an accused’s defence. Self-represented accused who likewise demonstrate that they lack the means to remunerate members of their defence team, may be entitled to funding from the Tribunal.

10. Legal Aid • An accused who requests legal aid has the burden of proving indigence, and must provide the Tribunal’s Registry with detailed information on his financial assets, including direct income, bank accounts, real or personal property, stocks and bonds. The accused also has to provide details on the financial assets of all members of his household. Where an accused has requested the assignment of counsel and has submitted a Declaration of Means, the Registrar must assign counsel for a period not exceeding 120 days in order to protect the accused’s right to counsel while his financial status is being assessed.

The Registrar then conducts an inquiry into the accused’s means and assesses his disposable income. From the established pool of income and assets, the accused’s disposable means is calculated, but deductions are made for the estimated living expenses of the accused’s family and dependents for the estimated period in which the accused will require representation before the Tribunal. An accused who claims indigence has a legal duty to update his declaration of means at any time a change relevant to his or her financial status occurs.

If, as a result of the financial investigation the accused is found fully or partially indigent, counsel is assigned permanently and the accused’s defence costs are borne by the Tribunal in full or in part, respectively. In the latter case, the Registrar issues a decision determining the extent to which the accused is able to contribute towards the costs of his defence, and administers payments accordingly.

11. Legal Aid (and ADC-ICTY Membership Committee) One of the fundamental challenges facing Defence counsel at the ICTY is that the jurisprudence at the ICTY involves a mix of traditional civil and common law principles. Therefore, the ADC and the ICTY require that Defence counsel meet certain minimum qualifications before they will be assigned to represent an accused. The ADC-ICTY has a Membership Committee which is comprised of five full members of the Association.The role of this committee is to determine if applicants to the ADC fulfill all the criteria for full membership in the ADC. If the Membership Committee determines that a lawyer does not meet the minimum qualification criteria this will prevent that individual from being accepted on the Rule 45 list of counsel maintained by the Registry; the list from which counsel are selected by accused who are in need of legal aid. In practice this means that the ADC has the ultimate responsibility to determine who is qualified to represent an accused and not the Registry. Any decision issued by the Membership Committee can be appealed before the Executive Committee of the ADC whose decision will be final.Hence the ADC performs the important function of assisting in ensuring that counsel for the accused will be sufficiently qualified to provide the accused with competent representation.

12. Defence Counsel’s Qualifications • The Defencecounsel are required to be highly experienced and competent to represent those accused of war crimes, crimes against humanity and genocide. • The requirements to be admitted as a member of the ADC-ICTY are: 1)  counsel is admitted to the practice of law in a state, or is a university professor of law; 2)  counsel possesses established competence in criminal and/ or international criminal law/ international humanitarian law/ international human rights law; 3)  counsel possesses at least seven years of relevant experience, whether as a judge, prosecutor, attorney or in some other capacity, in criminal proceedings; 4)  counsel has written and oral proficiency in one of the two working languages of the ICTY or has obtained a waiver pursuant to Rule 44 B of the ICTY RPE; 5)  counsel has not been found guilty or otherwise disciplined in relevant disciplinary proceedings against counsel where he is admitted to the practice of law or is working as a university professor of law; and, 6)  counsel has not been found guilty in relevant criminal proceedings against him. • The requirement for seven years’ experience may be waived for a counsel retained by the accused, as opposed to counsel assigned by the Tribunal. • Once a person is admitted as a full member of the ADC-ICTY he must also fulfill a similar set of criteria codified in Articles 44 and 45 of the ICTY RPE. These requirements are comparable to those stipulated by the ADC with the addition that all Defence counsel must remain in good standing with the ADC (must pay annual membership fees and monthly membership dues)to be eligible to practise before the ICTY. The Registry is vested with the power to decide if applicants to the Rule 45 list of counsel eligible to be assigned to cases fulfill the requirements of Articles 44 and 45 of the ICTY RPE. Once applicants meet all the qualification requirements they will be added to that list.

14. Lump Sums (Pre-Trial and Trial)

15. Lump Sums (Appeals Phase)

17. ICTY Weekly Press Briefing, 22 January 2014 Magdalena Spalińska, Spokesperson for Registry and Chambers, made the following statement: “In the Prlić and others case, the Registry on Monday submitted a request for the Appeals Chamber to order Slobodan Praljak to reimburse the Tribunal in the amount of 2,807,611.10 euros for his Defence costs before the Tribunal. Praljakdid not respond to the Registry's correspondence from December 2013, where an itemised specification of the costs was provided to him, following which the Registry now turns to the Appeals Chamber.”

18. Date: 22.1.2014; Time: 12:30 Magdalena Spalińska, Spokesperson for Registry and Chambers, made the following statement: “In the Prlić and others case, the Registry on Monday submitted a request for the Appeals Chamber to order Slobodan Praljak to reimburse the Tribunal in the amount of 2,807,611.10 euros for his Defence costs before the Tribunal. Praljakdid not respond to the Registry's correspondence from December 2013, where an itemised specification of the costs was provided to him, following which the Registry now turns to the Appeals Chamber.”

19. The Office of Legal Aid and Defence Matters • OLAD ensures that all accused are duly represented. Its mission includes assigning defence counsel to represent defendants who can not afford to pay their own counsel (indigent defendants). • If, as a result of the financial investigation the accused is found fully or partially indigent, counsel is assigned permanently and the accused’s defence costs are borne by the Tribunal in full or in part, respectively. In the latter case, the Registrar issues a decision determining the extent to which the accused is able to contribute towards the costs of his defence, and administers payments accordingly. If the accused is found to be fully non-indigent, his request for assignment of counsel is denied. • Since December 2000 and as of June 2011, the Registry has found that 39 of the Tribunal's accused (including one accused for contempt) were able to contribute to their defence costs.

20. Pro-Se Legal Liaison Office* • The Pro-Se Office shall provide specialised assistance to an Self-representative Accused (SRA) who elects to represent himself in Court proceedings before the Tribunal. The Office promotes equal access to the Court process for the SRA by ensuring that the Accused has adequate facilities to prepare and present his case in accordance with the Tribunal’s Statute, the Rules, the CMSS Directive and the Pro-se Office policies. • The Pro-Se Office is supervised by the CMSS Legal Coordinator. The Pro-Se Legal Liaison Officer acts under the joint direction of the Head of OLAD and the Chief of CMSS. • The Pro-Se Office facilitates coordination of information and communicates requests between sections of the Registry, the UNDU and other entities with the SRA and keeps the SRA and his legal team informed of procedural requirements and their responsibilities and obligations. *DIRECTIVE FOR THE COURT MANAGEMENT AND SUPPORT SERVICE SECTION (CMSS) / JUDICIAL SUPPORT SERVICES - REGISTRY (Article 6 bis)

21. Resources: • ICTY: http://icty.org ADC: http://adc-icty.org ADC-ICTY Developed Practices Manual: http://wcjp.unicri.it/deliverables/manual.php • ICC:http://www.icc-cpi.int/Pages/default.aspx • STL: http://www.stl-tsl.org

22. UNICRI produced, together with the Association of Defence Counsel practising before the ICTY (ADC-ICTY), a Manual on International Criminal Defence. The Manual provides an overview of some of the most effective and innovative practices developed by defence counsel representing accused before the ICTY. This publication is intended to be a reference tool for defence counsel defending cases of war crimes, crimes against humanity and genocide before national courts in the former Yugoslavia. In particular, the Manual deals with several problematic issues common to the various jurisdictions of the former Yugoslavia, such as use and challenging of ICTY-generated evidence, how to conduct an effective plea bargaining, how to deal with various kinds of witnesses and other relevant topics. The Manual is available for download at the following link:http://www.icty.org/x/file/About/Reports%20and%20Publications/manual_developed_practices/ADC_ICTY_developed_practices_en.pdf Appendix

23. The Manual, the result of a joint effort of the Tribunal and UNICRI (United Nations Interregional Crime and Justice Research Institute), is the first publication that provides a comprehensive description of the operating practices that have developed at the ICTY since its establishment. Topics covered, by those who worked on them first-hand, include investigations, judgment drafting, management of the Detention Unit and legal aid policies, as well as a range of other judicial support issues The ICTY Manual on Developed Practices is available for download from the Tribunal’s website at the following link: http://www.icty.org/x/file/About/Reports%20and%20Publications/manual_developed_practices/icty_manual_on_developed_practices.pdf Appendix

24. Questions?