The Registry is in receipt of a document dated 27 January 2004 from Defence lawyers, which they have issued as a basis for a strike that they have started yesterday. This document is not issued by the Association of Defence Counsel before the ICTR (ADAD) an Organization recognized by the Registry and which can intercede on any matters on behalf of the Defence Lawyers.
Upon receipt of this document the Registry wrote to ADAD to find out about their possible link with this group. The President held a meeting composed of representatives of the Defence and the Registry. In the meeting, the representatives stated that their group is composed of all Defence Counsel present in Arusha who are members and non-members of ADAD and that the existence of the group would be only for the duration of the strike. They recognized having never, as a group, communicated with the Tribunal on any of the matters set out in the letter of 27 January 2004 and communicated both to the press and to the Tribunal.
During the meeting, the Registry expressed its willingness to discuss the concerns listed by the Defence counsel, provided that the strike is called off, since there was no prior discussion on those issues with the group. The representatives indicated that they had a limited mandate from their colleagues, which did not allow them to stop the strike envisaged. The next day Defence Counsel decided to go ahead with the strike.
Having reviewed the concerns raised in the document, the Registry provides the following information.
The issue of the status of Legal Assistants and Investigators. This concern is divided into two aspects:
(i) Defence Counsel have always asked the Registry to accord Legal Assistants and Defence Investigators the same position as Lawyers vis-à-vis their clients. This would entail unfettered access to the United Nations Detention Facility (UNDF) and privileged contact with the accused.
The Registry has always reminded that pursuant to the pertinent regulations governing ICTR, the status of Counsel and the privileged communication with accused persons apply solely to Lead Counsel and Co-Counsel. Defence Counsel have litigated this issue before the different chambers which have consistently upheld the Registry’s position. The Judges and the Registrar have however, indicated that whenever good cause is shown, Legal Assistants and Investigators may have access to clients in the absence of Counsel and this has been done in some cases. Defence Counsel are encouraged to make specific requests in such situations.
(ii) The second concern relates to the presence in Arusha of Defence Investigators during the trial. Defence Counsel contend that Investigators’ tasks include work during trial and especially during the appearance of factual Prosecutor Witnesses.
The Registry’s position is that Defence Investigators are recruited to do specific work in the field, to wit, gather information for the Defence and report to the Lead Counsel. They are not employed to translate documents from or into kinyarwanda. Defence investigators are not even allowed to sit with those officially working in Chamber during trial. When they have had occasions to come, they sat in the public gallery. In fact their presence in the courtroom has caused concern to protected Prosecution witnesses and to the Registry in relation to protection orders issued by the Court as there is always a danger of security breach. Defence investigators should not therefore be present in Arusha during the trial session. Lead Counsel, Co-Counsel, the Legal Assistant and the accused are equipped to tackle issues arising from the prosecution witnesses whose statements have been previously disclosed to the Defence. Even in case of fresh evidence, which might have taken the Defence by surprise, the rulings of different chambers have provided ample safeguard to protect the Defence interest. In any event, even in case of irrepressible need for further Defence investigations this could hardly be envisaged to be carried out in Arusha. It is to be observed that criminal practice in the major criminal systems in the world does not require the presence of investigators at trial unless they are giving evidence. ICTY practice is even stricter. Only Lead Counsel, and Co-Counsel and sometimes Legal Assistants are allowed in court. Defence Counsel are at liberty to challenge this practice by way of petition to Court. The Registry will abide by any ruling from the Court.
Defence Counsel also allege that their work schedules are refused or reduced on unacceptable grounds of inappropriateness or un-timeliness. They are concerned that travels to Arusha during pre-trial stage are reduced to a maximum of three. Finally, they complain that at the delivery of judgment only Lead-Counsel are allowed to be present. It is claimed that the totality of these concerns has affected the rights of the accused persons to a full and effective defence.
The Registry’s position is that the budget of Legal Aid is not open-ended. At the end of the year the Registry has to account to the General Assembly of the United Nations on how they dealt with the Legal Aid Fund. They have to demonstrate that the amount expended was reasonable and necessary for the Defence of the accused persons who are indigent. This reality must be fully understood by all players in this matter. It is to be observed that during the financial years 2000 and 2001 the Registry over expended the Legal Aid Fund respectively by 3,539,493.00 and US $ 7,492,566.00 US$. As a result, the General Assembly issued on 12 February 2003 Resolution 57/289 requesting the ICTR to prepare a comprehensive report on revised arrangements for preventing over expenditures with respect to Defence Counsel and for managing, monitoring and controlling the expenses of the Legal Aid Programme. Since the issuing of the Resolution, the Registry has in a transparent manner briefed ADAD and forwarded to them a consolidated document concerning among other things the Legal Aid Reform. The Registry, as an agent of the United Nations, has to ensure that the management of the Legal Aid Programme is carried out in strict compliance with the rules and directives of the Tribunal and in accordance with the resolutions of the United Nations.
In this regard, it is indeed true that the Registry has strengthened its capacity for managing, monitoring and controlling the expenses under the Legal Aid Programme in order to ensure that only expenses that are reasonable and necessary are met. This will inevitably lead to refusal of work that is not considered reasonable or reduction of work to only what is deemed appropriate. It is also true that Defence Counsel travels to Arusha during pre-trial stage are, as a general rule, reduced to a maximum of three. It is the view of the Registry that during the first visit Defence Counsel will have a full briefing from his client, which will enable the two to come up with a defence strategy. Disclosure from the Prosecution may trigger the need for Counsel to meet his client again, either to clarify or refine the strategy. A third trip is also envisaged for that purpose. Defence Counsel is entitled to two coordination meetings with his team in Arusha. However, considering that Defence Counsel come from places as far away as Canada, France, Belgium, USA, the travels to Arusha cannot be left at their unfettered whims. In this regard, the Registrar has issued a circular on 13 September 2000, which all Counsel should be aware of. It should be noted that this rule of limitation is not inflexible. Upon showing of a good cause, a subsequent trip may be authorized.
As regards the presence of both Lead Counsel and Co-Counsel for the delivery of judgment, the Registry does not find it either necessary or reasonable. During delivery of judgment the Trial Chamber reads out only a summary of the judgment with a caveat that only the full text of the judgment, to be made available later, is the authentic and authoritative document. Further, there is absolutely nothing that Counsel does, apart from sitting and listening, and subsequently consulting with the client on what next course of action to take. This work does not justify the traveling of both Lead Counsel and Co-Counsel. However, should Counsel feel strongly that they have a good case in this issue, it is open to them to petition the Court for a ruling with which the Registry will comply.
The third concern is about payment of legal costs. Defence Counsel are against the Registry taxing their bills. They contend that the Registry should have no say on it as it is regarded as an inappropriate interference with Counsel independence and impinges on the Counsel Client confidentiality. They also claim that checking their bills amounts to the presumption of fraud by the Defence Counsel who do not have the time to comply with these bureaucratic requirements.
The Registrar reminds here that the pertinent rules and regulations of this Tribunal give him responsibility to decide who are indigent suspect/accused persons, to assign Defence Counsel to them and to determine how the Defence Counsel would be paid for the work they do. The Registrar cannot be a disinterested bystander who should just pay all manner of bills without ascertaining their validity. The Registry’s role does not in any way impinge on the Counsel-Client confidentiality. The Registry is a neutral organ, which services all parties to the Tribunal. The Registrar does not intend to abdicate his responsibilities. This is a matter of principle and accountability. The Registry however, would not stop Counsel from seeking a ruling on the legality of what he considers to be its lawful function.
Finally, Defence Counsel are concerned with the control measures at the UNDF. They complain that they are subject to scanning, thorough examination of their documents, physical search, and compelled to deposit their personal belongings in a safe at the gate. They claim that these measures have no equivalent in democratic states and are violation of their dignity.
The Registry’s position is that the measures employed at the detention facility to all visitors are standard and necessary for the security and good order of the detention facility. They ensure that no unwanted items are smuggled into the detention facility. These measures are applied across the board for all visitors to a detention center. The vigilance in using other methods of search is to detect items like paper money. It is a fact that over the past one year cell searches have yielded foreign currencies in various amounts as well as dangerous and prohibited items. The Registry is determined to ensure that the UNDF keep up with international acceptable standards. However, without compromising the security of the UNDF and bearing in mind Rule 97(B) of the Rules of Procedure and Evidence, the Registry is prepared to consider alleviating the search operational procedure, so that body search is no longer conducted on lead counsel and co-counsel.
Lastly, the Registry would like to observe that all the concerns that have been submitted by the Defence lawyers are concerns that could have been dealt with by resort to the established procedures for the settlement of disputes provided for in the Directive on Assignment of Defence Counsel, which include the taking of their grievances to the President of the Tribunal or the Advisory Panel or indeed the various Trial Chambers that are dealing with their cases.