The Right to be Defended in Person or Through Legal Assistance and the International Criminal Court

Leiden Journal of International Law

Volumn 13, Issue 4, 2000, Pages 949-984

  Beresford, Stuart ^a   Lahiouel, Hafida ^b  

^a UNIVERSITY OF OTAGO   (New Zealand)

^b International Criminal Tribunal for the Former Yugoslavia   (Netherlands)

Author keywords

choice of counsel; Code of Conduct; indigency; International Criminal Court; International Criminal Tribunal for Rwanda; International Criminal Tribunal for the former Yugoslavia; legal aid; legal representation; self representation; withdrawal of counsel

Indexed keywords

EID: 84857081156     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156500000558     Document Type: Article

References (117)

1. See Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, 8 August 1945, 82 UNTS 279, 59 Stat. 1544 (Nuremberg Charter), Art. 16(d).
2. J. Persico, Nuremberg-Infamy on Trial 94 (1994).
3. Charter of the International Military Tribunal for the Far East at Tokyo, Special Proclamation by the Supreme Commander for the Allied Powers at Tokyo, 19 January 1946 (amended 26 April 1946), TIASNo. 1589.
4. Statute of the International Criminal Tribunal for die former Yugoslavia, in the Secretary-General's Re-port on Aspects of Establishing an International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Lav, Committed in the Territory of the Former Yugoslavia, 3 May 1993, UN Doc. S/25704, reproduced in 32ILM 1159 (1993).
5. Statute of the International Criminal Tribunal for Rwanda, annexed to Sec. C. Res. 955, UN Doc. S/RES/955 (1994), reprinted in 33 ILM 1602 (1994).
6. Rome Statute of the International Criminal Court, adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Rome Conference) of 17 July 1998, UN Doc. A/CONF. 183/9 (1998) (Rome Statute), reprinted in 37 ILM 999 (1998). The Rome Statute was adopted with a vote of 120 in favour, seven against and 21 abstentions. The Statute will enter into force once 60 State Parties have ratified it. At the time of writing, six State Parties have done so, namely Fiji, Ghana, Italy, San Marino, Senegal and Trinidad and Tobago.
7. According to Art. 51(2) of the Rome Statute, amendments to the ICC Rules-which may be proposed by any State Party, the judges acting by absolute majority or the Prosecutor-shall only enter into force upon adoption by two-thirds majority of the members of the Assembly of State Parties. Id. For a description of the amendment procedure see O. Triffterer, Commentary on the Rome Statute of the International Criminal Court 688-690 (1999).
8. Pakelli v. Federal Republic of Germany, European Commission of Human Rights, App. No. 8398/78, para. 84 (1978) quoted in D. Hanis, M. O'Boyle &. C. Warbrick, Law of the European Convention on Human Rights 256 (1995).
9. S. Stavros, The Guarantees for Accused Persons under Art. 6 of the European Convention on Human Rights 202 (1993).
10. The Universal Declaration of Human Rights, Art. 11(1).
11. Nuremberg Charter, The Universal Declaration of Human Rights note 1, Art. 16(d).
12. Tokyo Charter, jupra note 3, Art. 9(c).
13. After the trial of the major Nazi war criminals ended, the Nuremberg Tribunal was dissolved and the task of prosecuting the thousands of other individuals who were alleged to have committed war crimes was passed to each of the four occupying powers. Because each occupying power had its own system of law, Control Council Law No. 10 was enacted by the Allied Control Council of Germany to establish a common basis for conducting the trials. See H. Levie, Terrorism in War: The Law of War Crimes 71 (1992).
14. Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, UN Doc. S/25704 (1993), reprinted in 32ILM 1159 (1993), at 106.
15. Art. 18(3) provides that “[i]f questioned, the suspect shall be entitled to be assisted by counsel of his own choice, including the right to have legal assistance assigned to him without payment by him in any such case if he does not have sufficient means to pay for it, as well as to necessary translation into and from a language he speaks and understands.” ICTY Statute, Id. note 4.
16. The ICTR's recognition ofthe right to be defended in person or through legal assistance, and in particular the provision of legal aid, should be contrasted with the fair trial rights provided to those tried by the national courts of Rwanda. In 1996 the Rwandan Government adopted legislation aimed at facilitating the prosecution of persons responsible for committing genocide and related crimes in its national courts. However, such legislation does not include any provision for assigned counsel for indigent accused-even those charged with offences that cany the death penalty. See V. Morris & M. Scharf, The International Criminal Tribunal for Rwanda, Vol. 1, at 521 (1998).
17. See R. Lee (Ed.), The Intemational Criminal Court: The Making of the Rome Statute Issues, Negotiations, Results 251 (1999).
18. Although suspects are guaranteed the right to counsel during questioning by the Prosecutor, Rule 42 of both the ICTR and ICTY Rules provides fliat suspects may explicidy and voluntarily waive this right. In case of waiver, if the suspects subsequently express a desire to have counsel, questioning shall thereupon cease, and shall only resume when the suspects have obtained or have been assigned counsel-The Prosecutor v. Delalic & Others, Decision on the Motion on the Exclusion and Restitution of Evidence and Other Material seised from the Accused Zejnil Deialid, Case No. IT-96-21-T, Tr. Ch. II, 9 October 1996, at paras. 13-14.
19. Such restrictions are permissible under the jurisprudence of international human rights bodies. In Ensslin, Baader and Raspe v. Federal Republic of Germany, the European Commission of Human Rights (European Commission) held that the German authorities could prevent a lawyer from representing tlie accused on the basis of his support for the criminal organisation to which they belonged. See Ensslin, Baader and Raspe v. Federal Republic of Germany, App. Nos 7572/76, 7586/76 and 7587/76,14 DR 64 (1978). The European Commission has also acknowledged that counsel may be excluded for refusing to wear robes, for showing disrespect to the court or because they were appearing as a witness for the defence. See Harris, O'Boyle & Warbrick, Although suspects are guaranteed the right to counsel during questioning by the Prosecutor note 8, at 259-260.
20. Intemational Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, Rules of Procedure and Evidence, UN Doc. IT/32/Rev, 16,15 July 1999 (ICTY Rules), Rule 44(A).
21. Id,. Rule 45(A), The ICTY Registrar has decreed that the term ‘to speak’ has been interpreted as being able to accurately express and communicate oral and written messages, even in a simple manner and to fully understand oral and written communications in one of the working languages. In its opinion, such abilities do not require native-speaker skills or style but a certain level of proficiency is essential. See The Prosecutor V, Kupre§kic& Others, Transcript, Case No, IT-95-I6-T, Tr, Ch, II, 17 August 1998.
22. ICTY Rules, Id,. Rule 45(A), The ICTY Registrar has decreed that the term ‘to speak’ has been interpreted as being able to accurately express and communicate oral and written messages, even in a simple manner and to fully understand oral and written communications in one of the working languages. note 25, Rule 45(B). In the Erdemovid; case, the Registrar assigned Mr, Jovan Babic to represent the accused-even though he did not satisfy the language requirements-on account of the fact that he had previously represented him in domestic proceedings, had earned his confidence, was familiar with all the aspects of the case agmnst him and had acted for him informally in discussions with the Prosecutor, TTie Prosecutor v, Erdemovii, Order on the Appointment of Defence Counsel, Case No, IT-96-22-PT, Tr. Ch. 1,28 May 1996.
23. Intemational Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of Intemational Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States between 1 January and 31 December 1994, Rules of Procedure and Evidence, UN Doc, ITR/3/Rev, 6 (1998) (ICTR Rules), Rule 44(A)
24. Id., Rule 44(B); see also ICTY Rules, Id. note 26, Rule 44(B).
25. Id., ICTY Code of Conduct, Arts. 4(2)(a) and (b); ICTR Code of Conduct, Art. 4(2)(a) and (b).
26. Id., ICTY Code of Conduct, Art, 7; ICTR Code of Conduct Art. 7.
27. See ICTR Rules, Id. note 29, Rule 46(D).
28. Id., Rule 46(A) to (C); see also ICTY Rules, See ICTR Rules note 26, Rules 46(A) and (B).
29. The Trial Chamber also decided to communicate the warning to the Belgian Bar Association. The Prosecutor v. Akayesu, Decision on the Motion filed by Defence Counsel concerning die Interfering Conduct of another Party, Case No. ICTR-964-I, Tr, Ch. 1, 31 January 1997.
30. The Prosecutor v, Alfred Musema, Decision to Withdraw Assigned Counsel and to Allow the Prosecution Temporarily to Redact Identifying Information of her Witnesses, Case No. ICTR-96-I3-I, Tr, Ch. II, 18 November 1997. An almost identical situation arose in the Akayesu case. On the morning of 19 March 1998, the Prosecutor was due to commence its closing arguments, however, the hearing had to be delayed for one hour on account of the non-appearance of counsel, Mr. Nicolas Tiangaye and Mr. Patrice Monthe. After noting that the presence of counsel during closing aiuments was not mandatory and observing that the defence could prepare its closing arguments on the basis of the transcripts of the hearing, Trial Chamber I allowed the hearing to proceed-However, before commencing the hearing, the Chamber issued a formal warning to the two counsel concerned that if they failed to appear for the second day of closing aiuments scheduled for 25 March 1999, appropriate sanctions would be taken. Mr. Tiangaye and Mr. Monthe did appear for the aftemoon session on 19 March 1998. When they appeared, tiie Chamber described their absence from the moming hearing as “regrettable”, “humiliating” and a “serious contempt”. Although they cited problems with the Registry as the grounds for their non-appearance, the Chamber rejected this as an invdid ground for leaving their client unrepresented at the morning's hearing. See The Prosecutor v. Jean-Paul Akayesu, Issuance of Warning Against Defence Counsel, Case No. ICTR-96-4-T, Tr. Ch. 1,19 March 1998.
31. The Prosecutor v. Milan Simic & Others, Decision on the Prosecution Motion to Resolve Conflict of Interest Regarding Attorney Borislav Pisarevic, Case No. 1T-95-9-PT, Tr. Ch. Ill, 25 March 1999.
32. See, for instance, Nuremberg Charter, Id. note 1, Art. 23 and Military Government-United States Zone Ordinance No. 7, 18 October 1946, Art. IV (c). Despite the fact that most of the German counsel chosen by accused were themselves subject to arrest or trial in German courts for membership in the Nazi Party or the SS and thus, if convicted, would be barred from legal practice, not a single request for the representation of German counsel was denied. Through the intervention of the American authorities, in order to allow them to represent the accused such persons were granted immunity from prosecution in the German courts. In one of the subsequent Nuremberg proceedings, however, the court did deny the request of one accused to have an American lawyer substituted for one of the German counsel who had previously been selected by the accused himself: The Tribunal expressed doubt of the sincerity of the application when pointing out that the American was not, in fact, available. It was the opinion of the Judges before whom he was to appear that the attorney had by his previous conduct de-lying orders of the Military Governor and by his violation of standing Military Government regulations disqualified himself See B. Ferencz, Nuremberg Trial Procedure and the Rights of the Accused, 39 The Journal of Criminal Law and Criminology 144, at 146-147 (1948).
33. Tokyo Charter, See, for instance, Nuremberg Charter note 3.
34. Rome Statute, Tokyo Charter note 6, Art. 104 (2).
35. M, Art. 106(3).
36. Id. Art. 57(3). The Prosecutor will be able to be present and assist the state authorities, but only if this is not prohibited by national law. Similarly, the Prosecutor may take certain “non-compulsory measures,” such as interviewing a voluntary witness without the presence of state authorities if it is essential for fte request to be executed. However, the Prosecutor can only take these steps after consultations with the state and, in cases where there has been no formal declaration of admissibility, the state can impose conditions on the Prosecutor's ability to do so.
37. See B. Green, Lethal Fiction: The Meaning of “Counsel” in the Sixth Amendment, 78 Iowa L. Rev. 433, at 438-445 (1993).
38. Id., 476-489.
39. It is noted that a University Professor of Laws may represent suspects and accused before the ad hoc Tribunals. Since a University Law professorship does not automatically carry with it the necessary knowledge or experience relevant to conduct an adequate defence before the ICC, the authors would not be in favour of any proposal to this effect. Such a position was taken by the Expert Group established in 1999 to prepare an evaluation of the functioning and operation of the Intemational Criminal Tribunal for the former Yugoslavia and the Intemational Criminal Tribunal for Rwanda with the objective of enhancing the efficient use of the resources allocated to the Tribunals. See Identical letters dated 17 November 1999 from the Secretary-General addressed to die President of the General Assembly and to the Chairman of the Advisory Committee on Administrative and Budgetary Questions, UN Doc. A/54/634 (1999) (Expert Group Report), para. 210.
40. Rome Statute, It is noted that a University Professor of Laws may represent suspects and accused before the ad hoc Tribunals. note 6, Art. 50(3).
41. The usefulness of such a programme is illustrated by problems that arose during the pre-trial preparation of the defence in die Tadic case. Following his transfer to the ICTY, Professor Michail Wladimiroff and Mr. Alphons Orie were assigned to represent the accused as lead and co-counsel respectively. Although both had impeccable credentials and had considerable competence, since they were trained in the Dutch inquisitorial system, neither had developed the necessary skills required to actively participate in an adversarial trial. Cognisant of their inexperience in adversarial trial procedures. Professor Wladimiroff and Mr. Orie, through the Registry, approached the American Bar Association's Central and East European Law Initiative (CEELI) for assistance in fine-tuning their trial techniques, particularly the art of examining and cross-examining witnesses. Using mock trial and videotaped direct and cross-examination exercises to highlight the practical techniques that may be usefijl during die actual trial, CEELI conducted a week-long training exercise for the defence team. Although they subsequently hired the services of a British Barrister to assist them during the trial, the training that they received provided them with sufficient skills and more importantly confidence to examine and cross-examine several of the wimesses who appeared before the court. See M. Ellis, Achieving Justice Before the Intemalional War Crimes Tribunal: Challenges for the Defense Counsel. 7 Duke J. of Comp. & Int'l L. 519, at 524-526 (1997).
42. Report of the Preparatory Committee on the Establishment of an International Criminal Court, Vol II, (Compilation of Proposals) GA, 51 Sess., Supp. No. 22, UN Doc. A/51/22 (1996) (PrepCom Report: Proposals), at 197.
43. Report of Third Session of Preparatory Committee, Id. note 60, at 30.
44. Currently, it has been proposed that only State Parties, the Prosecutor or the Judges acting by an absolute majority may propose amendments to the Code. Id.
45. Triffterer, Currently, it has been proposed that only State Parties, the Prosecutor or the Judges acting by an absolute majority may propose amendments to the Code. note 7, at 857.
46. PrepCom Report: Proceedings, Triffterer note 57.
47. Triffterer, PrepCom Report: Proceedings note 7, at 857.
48. ICTY Rules, Triffterer note 26, Rule 45; ICTR Rules, Triffterer note 29, Rule 45.
49. In this connection, it has been opined that it would be “difficult for a Trial Chamber to make the necessary assessment of facts upon which the determination of indigency rests.” See The Prosecutor V. Dokmanovic, Decision on Defence Preliminary Motion on the Assignment of Counsel, Case No. IT-95-13a-PT, Tr. Ch. II, 30 September 1997 (Dokmanovid Decision), para. 12.
50. See ICTY Directive, this connection, it has been opined that it would be “difficult for a Trial Chamber to make the necessary assessment of facts upon which the determination of indigency rests. note 24; ICTR Directive, this connection, it has been opined that it would be “difficult for a Trial Chamber to make the necessary assessment of facts upon which the determination of indigency rests. note 24.
51. ICTY Rules, See ICTY Directive note 26, Rule 45(C)(1); ICTR Rules, See ICTY Directive note 29, Rule 45(C)(i).
52. ICTY Directive, ICTY Rules note 24, Art. 6; ICTR Directive, ICTY Rules note 24, Art. 5.
53. Pakelli v. Federd Republic of Germany, Judgment of 25 April 1983, 6 EHRR 1 (1984), para. 34.
54. Other than the fact that it does not illustrate the types of income and capital which shall be taken into consideration, the relevant provision of the ICTR Directive is identical to Art, 7(B) of the ICTY Directive. See ICTR Directive, Id. note 24, Art. 6(B).
55. Id., Art. 6(C); see also ICTY Directive, Other than the fact that it does not illustrate the types of income and capital which shall be taken into consideration note 24, Art. 7 (C).
56. ICTY Directive, Id. note 24, Art. 9; ICTR Directive, Id. note 24, Art. 8.
57. During the United Nations consideration of the first Annual Report on die ICTR, die delegate from Rwanda stressed the “importance that the financial situation of genocide suspects be fully investigated before they are provided with defence counsel, since the key architects of genocide possess tremendous wealth as a result of having completely looted the Rwandan economy during the genocide crisis.” Statement of Rwanda, UN GAOR 51st Sess., at 20, UN Doc. A/51/PV.78 (1996).
58. ICTY Directive, During the United Nations consideration of the first Annual Report on die ICTR note 24, Art. 10; ICTR Directive, During the United Nations consideration of the first Annual Report on die ICTR note 24, Art. 9.
59. ICTY Directive, Art. 11(B); ICTR Directive Art. 10(B).
60. See The Prosecutor v. Miroslav Krstic, Decision, Case No. IT-98-33-PT, Tr. Ch. I, 7 January 1999, and The Prosecutor v. Miroslav Krstic, Decision, Case No. IT-98-33-PT, Tr, Ch. 1,12 February 1999.
61. Further Explanation, See The Prosecutor v. Miroslav Krstic note 85.
62. The Prosecutor v. Dolananovic, Decision not to Assign Mr. Toma Fila as Defence Counsel to Mr. Slavko Dokmanovie, Case No. lT-95-13a-PT, Tr. Ch. 11,30 July 1997.
63. See Further Explanation, The Prosecutor v. Dolananovic note 85.
64. Dokmanovic Decision, See Further Explanation note 77, para. 12.
65. The Prosecutor v. Dokmanovic, Decision to Assign Mr. Toma Fila as Lead Counsel, Case No. IT-95-13a-PT, Tr. Ch. II, 8 September 1997.
66. ICTY Directive, The Prosecutor v. Dokmanovic note 24, Art. 11(A); ICTR Directive, The Prosecutor v. Dokmanovic note 24, Art. 10(A).
67. ICTY Statute, ICTY Directive note 4, Art. 18 (3); ICTR Statute, ICTY Directive note 5, Art. 17(3).
68. Id, ICTY Statute, Art. 21(4)(d); ICTR Statute, Art, 20(4)(d).
69. See Further Explanation, Id, ICTY Statute note 85. Such an approach complies with the case law of the European Court, see Harris, O'Boyle & Warbrick, Id, ICTY Statute note 8, at 262.
70. ICTY Directive, See Further Explanation note 24, Art. 14(A); ICTR Directive, See Further Explanation note 24, Art. 13(A). It should be noted that counsel may also be assigned in the interests of justice to accused who request the assignment of counsel but do not comply with the requirements set out in the respective Directives, as well as accused who fail to obtain or request the assignment of counsel or to elect in writing that they intend to conduct their own defence (ICTY Directive, Art. 11 bis\ ICTR Directive, Art. 10 bis). See also The Prosecutor v. Sikirica & Others, Decision (Dosen), Case No. IT-95-8-PT, Tr. Ch. II, 21 July 1995.
71. ICTY Directive, Art. 12; ICTR Directive, Art. 11.
72. Agreement Between the United Nations and the Kingdom of The Netherlands conceming the Headquarters of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of Intemational Humanitarian Law committed in the Territory of the former Yugoslavia since 1991, UN Doc. S/1994/848 (1994), Art. XIX; Agreement Between the United Nations and the United Republic of Tanzania conceming the Headquarters of the Intemational Tribunal for Rwanda, UN Doc. A/51/399-S/I996/778 (1995), Art. XIX.
73. Id., ICTY Directive, Art. 19(A)(1); ICTR Directive, Art. 18(A).
74. See The Prosecutor v. Kordic & Others, Decision on the Registrar's Withdrawal of the Assignment of Defence Counsel, Case No. IT-95-14/2-T, Tr. Ch. Ill, 3 September 1999 (Cerkez Decision); The Prosecutor V, Kupreskic & Others, Decision on the Registrar's Withdrawal of the Assignment of Defence Counsel, Case No. IT-96-16-T, Tr. Ch. II, 3 September 1999 (Kupreski6 Decision).
75. Id., KupreSkic Decision, para. 7; referred to in the Cerkez Decision, para. 4.
76. Artico V. Italy, Judgement of 13 May 1980,3EHRR 1 (1981).
77. Id., para. 33.
78. Id., para. 36.
79. Kamasinski V. Austria, Judgement of 19 December 1989,13 EHRR36 (1990), para. 65.
80. Xv. United Kingdom, App. No, 9728/82, 6 EHRR 345 (1983).
81. Xv. Federal Republic of Germany, App. No. 6946/75, 6 DR 114 (1976).
82. App. No. 1807/63, cited in Harris, O'Boyie & Warbrick, Xv. Federal Republic of Germany note 8, at 263.
83. Pratt and Morgan v, Jamaica, ICCPR, Comm. Nos. 210/86 and 225/87, at para. 13.2.
84. A. Tusa & J. Tusa, The Nuremberg Trial 216 (1984).
85. D. Sprecher, Inside the Nuremberg Trial: A Prosecutor's Comprehensive Account, Vol. 1, at 127 (1999).
86. The Prosecutor v. Delalic and Others, Decision on Request by Accused Mucic for Assignment of New Counsel, Case No. IT-96-21-PT, Tr. Ch. II, 24 June 1996.
87. The Prosecutor v. Gerard Ntakirutimana, Decision on the Motions of the Accused for Replacement of Counsel, Case No. ICTR-96-10-T, ICTR-96-17-T, Tr, Ch. 1,11 June 1997.
88. Id, In a decision rendered in the Nyiramasuhuko case on 13 March 1998, on a defence motion requesting the appointment of a specifically named co-counsel. Trial Chamber 1-Judges Kama, Aspegren and Pillay-held that the same test applies, mutatis mutandis, to the appointment of a co-counsel. The Prosecutor v. Pauline Nyiramusuhuko and Arsene Ntahobali, Decision on the Motion on the Decision of a Request for Assignment of Counsel, Case No. ICTR-97-21-T, Tr, Ch. I, 13 March 1998 (Nyiramusuhuko Decision), at 16.
89. See The Prosecutor v. Jean-Paul Akayesu, Motion for Judicial Review under Section 19 of the Statute and Rules 73 and 105 of the Rules of Procedure and Evidence, Urgent Motion for Oral, Case No. ICTR-96-4-A, App, Ch., 20 January 1999; and The Prosecutor v. Jean-Paul Akayesu, Appellant's Reply to Registrar's Arguments, Case No. ICTR-96-4-A, App. Ch., 28 April 1999.
90. The Prosecutor v. Jean-Paul Akayesu, Decision Relating to the Assignment of Counsel, Case No. ICTR-964-A, App. Ch., 27 July 1999.
91. The Registrar also commented that the moratorium had helped prevent monopolisation by a particular group of lawyers of legal representation at the ICTR, which could have led to Ihistration of its judicial process through dilatory and other tactics. See Registrar Statement, Id. note 129.
92. ICTY Directive, The Registrar also commented that the moratorium had helped prevent monopolisation by a particular group of lawyers of legal representation at the ICTR, which could have led to Ihistration of its judicial process through dilatory and other tactics. note 24, Art. 20(A)(i); ICTR Directive, The Registrar also commented that the moratorium had helped prevent monopolisation by a particular group of lawyers of legal representation at the ICTR, which could have led to Ihistration of its judicial process through dilatory and other tactics. note 24, Arts. 19(A)(i) and (ii).
93. Id, ICTY Directive, Art. 20(D); ICTR Directive, Art. 19(D). Where a request for wiidrawal has been denied, the person making the request may seek the President's review of the Registrar's decision (ICTY Directive, Art. 20(E); ICTR Directive Art. 19(E)).
94. See A. Cassese, Opinion: The International Criminal Tribunal for the Former Yugoslavia and Human Rights, 4 EHRLR 329, at 339 (1997).
95. Because of budgetary constraints, limits are placed on the number of support staff assigned counsel may hire and the amount those persons may be paid. See ICTY 1997 Annual Report, Opinion: The International Criminal Tribunal for the Former Yugoslavia and Human Rights note 35.
96. Such commitment was demonstrated by the assigned counsel in the Tadic case, who each spent between twelve and fourteen hours a day, six days a week on the defence of the accused. See Ellis, Because of budgetary constraints, limits are placed on the number of support staff assigned counsel may hire and the amount those persons may be paid. note 60, at 529.
97. Annex VI of the ICTY Directive states that lead counsel shall be remunerated at a rate of $80 to $110 per hour depending on experience, while co-counsel are to be paid at a fixed rate of $80 per hour. See Report of the Intemational Tribunal for the Prosecution of Persons Responsible for Serious Violations of Intemational Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991, UN Doc. A/51/292 (1996), para. 109. Due to budgetary constraints, however, limitations have been imposed on the maximum number of hours assigned counsel may claim as remuneration. In addition, limits have been placed on the number of investigators and consultants assigned counsel may hire and the amount such persons may be paid. ICTY 1997 Annual Report, Such commitment was demonstrated by the assigned counsel in the Tadic case, who each spent between twelve and fourteen hours a day, six days a week on the defence of the accused. note 34, para. 87. As of 15 May 1998 the maximum number of hours assigned counsel may be remunerated per month is 175. See T. Wilkinson, Reason to take on War Crimes Tribunal, Los Angeles Times, 15 May 1998.
98. ICTY Directive, Annex VI of the ICTY Directive states that lead counsel shall be remunerated at a rate of $80 to $110 per hour depending on experience, while co-counsel are to be paid at a fixed rate of $80 per hour. note 24, Arts. 26 (daily subsistence allowance) and 30 (travel expenses); ICTR Directive, Annex VI of the ICTY Directive states that lead counsel shall be remunerated at a rate of $80 to $110 per hour depending on experience, while co-counsel are to be paid at a fixed rate of $80 per hour. note 23, Arts. 22(iii) (daily subsistence allowance) and 27 (travel expenses). In the interests of justice and in order to ensure the full exercise of the rights of the defence, the Registrars of the ad hoc Tribunals may also authorise the reimbursement of travel and accommodation costs incurred during investigative missions assigned counsel undertake. Id., ICTY Directive, Art. 30(C); ICTR Directive, Art. 27(C).
99. The budget of the ICTR for this purpose amounts to almost ten percent of the total expenditure estimates. Expert Group Report, ICTY Directive note 58, para. 203.
100. Rome Statute, id.,Aii. 43(1).
101. During the second session of the Preparatory Commission a number of State Parties proposed establishing an office of the defence under the roof of the ICC Registry. According to their proposal although the office would in general be financially dependent on the budget of the Registry, the ICC Registrar would be responsible for ensuring that all matters which are essential to the professional independence of defence counsel would be administered in “an independent manner.” See UN Doc. PCNICC/1999AVGRPE(4)/DP,2 Rev. 1 (1999). Having received the support of the majority of delegates, this proposal was adopted during the third session of the Preparatory Commission, Report of the Third Session of the Preparatory Commission, id. note 60, at 28.
102. See ICTY 1997 Annual Report, During the second session of the Preparatory Commission a number of State Parties proposed establishing an office of the defence under the roof of the ICC Registry. note 35, para. 86. The work of the Units involves assisting the Registrar in developing and maintaining the list of persons who have indicated their willingness to represent indigent accused and monitoring the requirements regarding the professional duties and responsibilities of assigned counsel, their qualifications and their remuneration. The respective Units have also been involved in determining whether a suspect or an accused is entitled to the provision of legal aid and have provided valuable advice to the Registrars of the ad hoc Tribunals when defence counsel have sought to resign their assignment or an accused has sought their replacement. See Expert Group Report, During the second session of the Preparatory Commission a number of State Parties proposed establishing an office of the defence under the roof of the ICC Registry. note 58, para. 202.
103. ICTY Directive, Annual Report note 24, Art. 6; ICTR Directive, Annual Report note 24, Art. 5.
104. Further Explanation, ICTY Directive note 85.
105. ICTY Directive, Id. note 24, Art. 7; ICTR Directive, Id. note 24, Art. 6.
106. Further Explanation, note 85.
107. See Luedicke, Belkacem and Koc v. Federal Republic of Germany, Judgement of 28 November 1978,2 EHRR 149(1979-1980), para. 42.
108. Harris, O'Boyie & Warbrick, Belkacem and Koc v. Federal Republic of Germany note 8, at 262; see also Further Explanation, Belkacem and Koc v. Federal Republic of Germany note 85.
109. PrepCom Proposals, O'Boyie & Warbrick note 63, at 198.
110. See Kupreskic Decision and Cerkez Decision, O'Boyie & Warbrick note 63 note 109.
111. See P. Tague, An Indigent's Right to the Attorney of his Choice, 27 Stanford Law Review 73, at 80 (1974). It lias been pointed out tliat in the United States of America where indigent accused are not entitled to select the attorney who will represent them; “Indigents commonly mistrust the public defender assigned to them and view him as part of the same court bureaucracy that is ‘processing’ and convicting them. The lack of trust is a major obstacle to establishing an effective attorney-client relationship,” See S. Schulhofer & D. Friedman, Rethinking Indigent Defence: Promoting Effective Representation through Consumer Sovereignty and Freedom of Choice for all Criminal Defendants, 1993 American Law Review 73, at 86 (1993).
112. Id., Tague.
113. See Schulhofer & Friedman, Id. 164.
114. See W. Lafave & J. Israel, Criminal Procedure: Second Edition 547 (1992).
115. Although this concern stems from the belief that accepting defendant's choice will impose a substantia] burden on the more experienced attorneys, it has been noted that “in the ‘even-handed distribution’ argument, appointment may be seen as a plum that particular attorneys should not be permitted to horde. But remuneration is seldom too generous, and if it is, inequitable distribution is far more likely when judges or other court officials control the procedure than when its distribution results from choices by individual defendants pursuing their own self interest. Indeed, defendant choice would tend to force attorneys to compete away excess profits by offering better services to attract clients,” Schilhofer & Friedman, Criminal Procedure: Second Edition note 164, at 107-108.
116. Art. 15 provides “no counsel shall be assigned to more than one suspect or accused.” ICTR Directive, Although this concern stems from the belief that accepting defendant's choice will impose a substantia] burden on the more experienced attorneys, it has been noted that “in the ‘even-handed distribution’ argument, appointment may be seen as a plum that particular attorneys should not be permitted to horde. note 24.
117. See Michael Adams v. Jamaica, ICCPR, Comm. No. 607/94 (1994).