A competent defence upholds equality of arms between the Prosecution and the Defence, thereby ensuring the fairness of the proceedings.
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. As in any other court of law, the defence plays a crucial role at the ICTY. A competent defence upholds equality of arms between the Prosecution and the Defence, thereby ensuring the fairness of the proceedings. Furthermore, a competent and vigorous defence contributes to the Tribunal’s credibility and legitimacy in the eyes of the international community. The confidence the public has in the court depends on the fairness of its trials.
The results at the end of a trial will be meaningless unless a robust defence is afforded to the accused.
Michael G. Karnavas, former President Association of Defence Counsel Practicing before the ICTY (ADC-ICTY)
The Right to Defence Counsel
Defence counsel are responsible for conducting the defence throughout all stages of the case. All persons indicted by and appearing before the Tribunal have the right to be represented by defence counsel.
This and other rights of the accused are enshrined in the Tribunal's Statute and further regulated by the Rules of Procedure and Evidence. If the accused wish to have defence counsel, they can either choose their own or be assigned one by the Registrar.
To become defence counsel before the ICTY, a lawyer must fulfill the following qualification requirements:
• He or she must be admitted to practice law in a state or be a university law professor;
• He or she must have written and oral proficiency in one of the two working languages of the Tribunal - English or French. In certain circumstances, counsel privately retained by an accused may obtain a waiver of this requirement from the Registrar, In addition, the Registrar may exceptionally waive this requirement for an assigned co-counsel who does not speak either working language but speaks the native language of the accused;
• He or she must be a member of an association of counsel practising at the Tribunal recognised by the Registrar;
• He or she must not have been found guilty or otherwise disciplined in relevant disciplinary proceedings against him or her in a national or international forum, including proceedings pursuant to the Code of Professional Conduct for Defence Counsel Appearing Before the International Tribunal, unless the Registrar deems that, in the circumstances, it would be disproportionate to exclude such counsel
• He or she must not have been found guilty in relevant criminal proceedings;
• He or she must not have 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 Tribunal or the administration of justice, or otherwise bring the Tribunal into disrepute;
• He or she must not have provided false or misleading information in relation to his or her qualifications and fitness to practice or failed to provide relevant information.
Accused persons who cannot afford to pay for counsel are entitled to the assignment of counsel, paid for by the Tribunal. If the accused has means to remunerate counsel partially, the Tribunal will only cover that portion of the costs of the defence which the accused cannot bear. The Office for Legal Aid and Defence Matters within the Registry deals with all matters related to the issues of defence and detention at the Tribunal.
In accordance with Article 21 of the Statute, an accused person may elect to represent himself in person. While this right is not unlimited, in several ICTY cases, Chambers have recognised the right to self-representation and allowed the accused to conduct their own defence. In those cases, the Tribunal, through the Registrar, ensures the provision of adequate facilities to the self-represented accused, including the assignment of legal advisers and other support staff to assist the self-represented accused in the preparation of his case, privileged communication with certain categories of defence team members, photocopying and storage facilities. Furthermore, in line with an Appeals Chamber decision in one of the cases involving a self-represented accused, the Registrar adopted a special Remuneration Scheme for persons assisting indigent self-represented accused. A provision was also made for the assignment of an investigator, a case manager and a language assistant where necessary, to assist with translation.
Association of Defence Counsel Practicing Before the ICTY
Since September 2002, defence counsel have been collectively represented through the Association of Defence Counsel practicing before the ICTY (ADC-ICTY), an organisation that is independent of the Tribunal. The aim of such an association is to ensure a higher quality of defence for the accused and to make collective representations to the organs of the Tribunal on behalf of all defence counsel involved in ICTY cases. In addition, it became necessary to have such an association in the context of the Code of Professional Conduct for Counsel Appearing before the International Tribunal and its disciplinary mechanism.
Status of the Defence
Although the ADC-ICTY is not institutionally an organ of the Tribunal, in recent years the Registrar of the Tribunal has involved the ADC-ICTY in Tribunal-wide committees and projects. Moreover, the Registrar consults with the ADC-ICTY prior to adopting major policies affecting the work of defence teams. Notably, the ADC-ICTY was consulted prior to adopting the pre-trial and trial legal aid policies. In addition, the ADC-ICTY was involved in the complete review of the Directive on the Assignment of Defence Counsel in 2006.