1. How are defence counsel appointed?
2. What is the Association of Defence Counsel (ADC)?
3. How is the defence team created?
4. What facilities do defence counsel have at their disposal at the Tribunal?
5. Can defence counsel defend two or more clients before the Tribunal?
1. How are defence counsel appointed?
Suspects and accused who are paying for their defence are entitled to choose their own defence attorneys. Such privately retained lawyers will be admitted to represent the accused if they fulfil the basic qualification requirements listed in Rule 44 of the Rules of Procedure and Evidence. An indigent suspect or accused, however, may ask the Tribunal’s Registrar to assign a Tribunal-paid attorney to defend him or her before the Tribunal. In such a case, the suspect or accused can select an attorney from a list of qualified attorneys kept by the Registrar and the Tribunal will bear the cost of the defence.
2. What is the Association of Defence Counsel (ADC)?
The Association of Defence Counsel Practising before the ICTY (ADC-ICTY) is an independent professional association of defence counsel registered under the laws of the Netherlands. It is not an organ of the International Criminal Tribunal for the former Yugoslavia. It is, however, the only defence counsel organisation recognised by the Registrar of the Tribunal pursuant to Rule 44 of the Rules, and defence counsel who wish to practice before the ICTY must be members in good standing of the ADC-ICTY. More information about the ADC-ICTY can be found on their website: http://adc-icty.org/.
3. How is the defence team created?
For an accused’s initial appearance before the court, unless the accused is already represented by a qualified counsel, the Registrar will usually assign a duty counsel. This is a temporary assignment whose purpose is to protect the accused’s rights, and particularly his right to counsel, until the accused has counsel – privately retained or assigned by the Registrar. Once the accused makes his or her choice of counsel, if he or she claims indigence, the accused is required to submit a formal request to the Registrar for the assignment of counsel accompanied by the accused’s declaration of means, listing all the assets owned by the accused and the members of his household as well as any debts they may have. If the accused is not indigent, a formal power of attorney should still be filed with the Registry. The Registry will then review the qualifications of the counsel and ascertain that there is no impediment to the assignment. Once the lead counsel has been assigned, it is then the prerogative of lead counsel to select other members of the defence team, in consultation with the accused. Thus, if the accused is indigent, the lead counsel may request the Registrar to assign a co-counsel (who must also comply with the qualification requirements set out in Rule 45) and support staff to assist lead counsel. In general, a defence team is composed of a lead counsel, co-counsel, one or more investigator(s), and one or more legal assistant(s) and a case manager. Only the lead counsel and co-counsel are authorised to make submissions on behalf of the accused in court.
4. What facilities do defence counsel have at their disposal at the Tribunal?
The fees of defence counsel include a component for office and administrative costs. It is therefore the responsibility of each counsel to establish his or her own office with computers, facsimiles, secretaries, etc. However, in order to facilitate their preparation whilst attending hearings, the Registry has made allocated office and meeting space for the defence Secretariat on the Tribunal’s premises. The defence rooms are equipped with computers, telephones, a photocopier and facsimile. In addition, defence counsel have access to the ICTY library and a variety of IT services, including a defence IT network on which to store defence documents, access to the Judicial Database, including remote access to these facilities. The ADC-ICTY has also been provided with an office in the Tribunal’s main building.
5. Can defence counsel defend two or more clients before the Tribunal?
If two accused are being tried in the same case at the same time, Article 16(A) of the Directive on the Assignment of Defence Counsel (Directive) states that each accused shall be entitled to request the assignment of separate counsel. Even if both accused consent to having the same counsel represent them at the same time, the Registry would not be likely to grant their request since the workload would be likely to impact upon the ability of counsel to provide effective representation. Furthermore, it is possible that the two persons accused may have conflicting interests or defences that could give rise to a conflict of interest at some stage of the proceedings. For these reasons, Article 16(G) of the Directive prohibits the assignment of the same counsel to more than one suspect or accused, unless the Registrar is satisfied that the interests of neither accused will be jeopardised as a result of the dual assignment.
Similarly, if an accused is charged under the same or closely related indictment as another accused whose case has already been tried, the Registrar would first have to consider whether a conflict of interest would be likely to arise if the same counsel were assigned to represent the accused. In that case, both former and prospective clients would have to sign a waiver stating that they have been fully informed regarding the existence of a potential conflict and that they nonetheless consent to the assignment of the counsel in question. It is possible for the Registrar to determine that the conflict is too great and cannot be waived. In such a case, the Registrar may reject the request for the assignment of that particular counsel and direct the accused to select another counsel from the Rule 44 list. The Registrar’s decision is subject to judicial review.