1. Does the Tribunal have a legal aid system?
2. How does the ICTY ensure that the legal aid system is fair?
3. What is the payment policy for defence counsel?
4. What is partial indigence?
5. Have there been any abuses of the legal aid system?
1. Does the Tribunal have a legal aid system?
Yes. Every person accused by the Tribunal is entitled to professional defence counsel. If they wish to have a lawyer but cannot afford to be represented, the accused are entitled to legal aid: they are entitled to have counsel at the Tribunal’s expense. The legal aid system plays a vital role in guaranteeing a fair trial for the accused. Article 21 of the Tribunal’s Statute states that an “accused shall be entitled to have legal assistance assigned to him in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.” The legal aid system thus enacted is based on the following principles:
● The accused is entitled to legal aid if he is partially or fully incapable of paying for his defence;
● Only necessary and reasonable expenses for the criminal defence are remunerated;
● The legal aid system requires defence counsel to be efficient in its management of cases;
● The legal aid system must be able to attract defence counsel of good quality and standing, and with skills at a level comparable to the senior trial attorneys and trial attorneys working in the Tribunal’s Office of the Prosecutor;
● The accused and the prosecutor must have, as much as possible, equality of procedural arms, supported by the appropriate level of resources.
2. How does the ICTY ensure that the legal aid system is fair?
The legal aid system has its legal basis in Article 21 of the
Tribunal’s Statute, in the Rules of Procedure and Evidence, in the Directive on Assignment of Defence Counsel and various Registry policies established on the basis of it, and in the administrative practice of the Registry as established by Tribunal case law. In other words, the rules governing the Tribunal’s legal aid system are approved by the judges, in coordination with the Association of Defence Counsel and the Registrar. An accused whose defence costs are covered by the legal aid system may challenge relevant aspects of legal aid decisions made in his case. For example, the accused can challenge determinations of complexity levels of cases, duration estimates of cases and other determinations affecting the level of resources provided so as to ensure that the principles of a fair trial and equality of arms are upheld. The Registrar, after consultations with the Association of Defence Counsel, can and does make periodic amendments to improve the efficiency and effectiveness of the system. Finally, all decisions of the Registrar on legal aid issues are subject to judicial review by the President, or the chamber if the matter raises fair trial issues in the cases themselves.3. What is the payment policy for defence counsel?
Since 2004, lump sum payment schemes for pre-trial and trial are in place. The lump sum payment scheme replaced the so-called “ceilings system” – maximum allotment of hours – previously in place. The lump sum gives more flexibility to defence counsel to hire as many support staff as necessary and to manage the defence funds most effectively. It also aims to distinguish between the levels of difficulty of various cases by providing a larger amount to more complex ones. Moreover, the burdensome detailed monthly invoices are replaced by an end of stage reporting of work performed. This, in all, reduces the administrative burden on defence counsel.
4. What is partial indigence?
Up until 2001, legal aid could only be allowed in full or not at all. Since most accused had modest financial means, the Tribunal had to finance their defence fully. In an effort to deal more realistically with the indigence of the accused, the Tribunal recognised that some accused may be able to pay partially for representation, especially since the accused who have been arrested or surrendered in recent times, have more substantial means. An amendment to the Directive on Assignment of Defence Counsel introduced the concept of partial indigence, obliging a wealthy accused to pay a proportion and the Tribunal to cover the rest. To this end, in March 2002, the Tribunal appointed a financial investigator who gathers evidence about the accused’s assets to enable to Registrar to decide if full or partial aid is required.
5. Have there been any abuses of the legal aid system?
The financial investigations also inquire into allegations of financial misconduct. In this respect, they have resulted in some findings of billing irregularities. Importantly, they have uncovered cases of “fee-splitting”. This term describes the phenomenon in which the lawyer and the accused share the lawyer's fees. This has led to abuses, notably in the case of Zoran Žigić, who managed to amass US$ 175,000 for himself as a result of “fee-splitting”.