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In this January 30, 1995 directive, instructions are set forth regarding the assignment of defense counsel for defendants facing the tribunal for war crimes committed in the former Yugoslavia.
UNITED NATIONS
International Tribunal for the
Prosecution of Persons
Responsible for Serious Violations
of International Humanitarian Law
Committed in the Territory of
Former Yugoslavia since 1991
IT/73/Rev.2
30 January 1995
Original: English & French
Fifth Session
The Hague, The Netherlands
16 January - 3 February 1995
DIRECTIVE ON ASSIGNMENT OF DEFENCE COUNSEL
(Directive No.1/94)
(As amended 30 January 1995)
TABLE OF CONTENTS
SUMMARY OF CONTENT
INTRODUCTION
PREAMBLE
ARTICLE 1. ENTRY INTO FORCE
ARTICLE 2. DEFINITIONS
GENERAL PRINCIPLES
ARTICLE 3. RIGHT TO COUNSEL
ARTICLE 4. PERSON TO WHOM COUNSEL IS
ASSIGNED
ARTICLE 5. INDIGENCY
PROCEDURE FOR THE ASSIGNMENT OF COUNSEL
ARTICLE 6. REQUEST FOR ASSIGNMENT OF
COUNSEL
ARTICLE 7. APPLICANT'S FINANCIAL SITUATION
ARTICLE 8. DECLARATION OF MEANS
ARTICLE 9. CERTIFICATION OF THE DECLARATION
OF MEANS
ARTICLE 10. INFORMATION
ARTICLE 11. DECISION BY THE REGISTRAR
ARTICLE 12. NOTIFICATION OF THE DECISION
ARTICLE 13. REMEDY AGAINST A DECISION NOT TO
ASSIGN
STATUS OF ASSIGNED COUNSEL
ARTICLE 14. PRE-REQUISITES FOR THE ASSIGNMENT
OF COUNSEL
ARTICLE 15. PROFESSIONAL CERTIFICATION
ARTICLE 16. SCOPE OF THE ASSIGNMENT
ARTICLE 17. APPLICABLE LAW
ARTICLE 18. RESPONSIBILITY FOR COSTS AND
EXPENSES
ARTICLE 19. WITHDRAWAL OF ASSIGNMENT
ARTICLE 20. WITHDRAWAL OF DECISION BY A
CHAMBER
ARTICLE 21. REPLACEMENT
ARTICLE 22. ASSIGNMENT OF COUNSEL AWAY
FROM THE SEAT OF THE TRIBUNAL
REMUNERATION AND TRAVEL EXPENSES
ARTICLE 23. REMUNERATION PAID TO ASSIGNED
COUNSEL
ARTICLE 24. FIXED RATE
ARTICLE 25. FEES
ARTICLE 26. DAILY ALLOWANCE
ARTICLE 27. STATEMENT OF REMUNERATION
ARTICLE 28. PROVISIONAL PAYMENT
ARTICLE 29. PAYMENT PRO RATA TEMPORIS
ARTICLE 30. TRAVEL EXPENSES
ARTICLE 31. FINANCIAL OFFICER OF THE REGISTRY
ADVISORY PANEL
ARTICLE 32. ADVISORY PANEL
ARTICLE 33. SETTLEMENT OF DISPUTES
FACILITIES
ARTICLE 34. PROVISION OF FACILITIES
LIST OF ANNEXES
ANNEX I: REQUEST FOR ASSIGNMENT OF COUNSEL
(FORM D1/1)
ANNEX II: DECLARATION OF MEANS (FORM D1/2)
ANNEX III:STATEMENT FOR REIMBURSEMENT OF
EXPENSES (FORM D1/3)
ANNEX IV: STATEMENT OF FEES (FORM D1/4)
ANNEX V: STATEMENT OF TRAVEL EXPENSES
(FORM D1/5)
SUMMARY OF CONTENT
INTRODUCTION
(PREAMBLE)
This directive has been drawn up in accordance with the
provisions set out in the preamble and which govern the
International Tribunal for Crimes in the former Yugoslavia.
The text also has its origins in reference documents relating to
legal assistance and, among them, the Rules of the European
Commission and European Court of Human Rights and their
addenda, and French and Dutch law relating to legal aid and
their implementing texts.
(ARTICLE 1) ENTRY INTO FORCE
This directive is intended to enter into force as early as
possible, and in any event as soon as the Office of the
Prosecutor commences his investigative inquiries.
(ARTICLE 2) DEFINITIONS
The directive is an implementing text of the Statute and of the
various rules adopted by the Tribunal in plenary session,
which the Registrar must adopt in order to ensure
implementation of the provisions concerning the right to
counsel and the principle of assignment of counsel. It is
therefore unnecessary to define in this directive, terms which
are already defined in the basic texts.
GENERAL PRINCIPLES
(ARTICLES 3 to 5)
These principles reiterate respectively the general right to a
defence, the right to assignment of counsel and the principle of
indigency as laid down in the instruments establishing the
Tribunal and developed during the proceedings of the
Tribunal's third plenary session relating to assignment of
counsel.
ASSIGNMENT PROCEDURE
(ARTICLES 6 to 13)
These provisions set out the detailed procedures for the
assignment of counsel, including the application made by the
suspect or the accused, the applicant's declaration of means
and its certification, the particulars and analysis of his financial
situation the decision by the Registrar, the intimation of this
decision and the avenues of appeal available against a decision
to reject a request.
STATES OF ASSIGNED COUNSEL
(ARTICLES 14 to 22)
After noting the qualifying requirements for assigned counsel,
the text defines the scope of their assignment, the legal
implications of the assignment of counsel, and the bearing of
costs and expenses and their recovery.
Three further situations have been envisaged, namely the
assignment of counsel away from the seat of the Tribunal, the
withdrawal of assignment of counsel and the discontinuance of
the services of counsel.
REMUNERATION AND TRAVEL EXPENSES
(ARTICLES 23 to 31)
The remuneration paid to assigned counsel on completion of
his engagement will comprise three categories, namely, a
retainer, fees, and a daily allowance whose rates and method
of calculation are set out.
The payment of such remuneration, and of all the other costs
which fall to be paid rests upon the presentation of a detailed
statement on a standard form provided by the Registry and
submitted for payment on completion of the engagement of
assigned counsel to the Financial Officer of the Registry.
All payments in respect of the assignment of counsel must
receive the prior approval of the Registrar, who will
countersign any statement presented to the financial department
for this purpose.
THE ADVISORY PANEL
(ARTICLES 32 AND 33)
A consultative body is established, consisting of seven
members to be appointed on the recommendation of
representatives of the legal profession. The Advisory Panel
will be consulted as and when appropriate by the Registrar or
the President on questions relating to the assignment of
counsel or on any other questions relating to the assignment of
counsel of which the Tribunal is seized. The Advisory Panel
may of its own initiative consult the Registrar on any matter
relating to the assignment of counsel. The members of the
Advisory Panel will be appointed every two years on the
anniversary date of the entry into force of the Directive.
FACILITIES
(ARTICLE 34)
Subject to the availability of space and resources, some basic
facilities would be provided for assigned counsel.
DIRECTIVE ON THE ASSIGNMENT OF DEFENCE
COUNSEL
(Directive No. 1/94)
PREAMBLE
The Registrar of the Tribunal,
Considering the Statute of the Tribunal as adopted by the
Security Council under Resolution 827 (1993) of 25 May
1993, and in particular Articles 18 and 21 thereof;
Considering the Rules of Procedure and Evidence as adopted
by the Tribunal on 11 February 1994 and amended on 5 May
1994, and in particular Rules 42 ,45 and 55 thereof;
Considering the Rules for the Detention of persons pending
trial or appeal before the Tribunal or detained on the orders of
the Tribunal as adopted by the Tribunal on 5 May 1994, and
in particular Rule 67 thereof;
Considering the host country agreement between the United
Nations and the Kingdom of the Netherlands concerning the
seat of the Tribunal signed at New York on 29 July 1994, and
in particular Article XX thereof;
Considering the approval of this Directive no. 1/94 by the
Tribunal on 28 July 1994;
ISSUES THE DIRECTIVE ON THE ASSIGNMENT OF
DEFENCE COUNSEL AS FOLLOWS:
ARTICLE 1. ENTRY INTO FORCE
This directive lays down the conditions and arrangements for
assignment of counsel and shall enter into force on the first
day of August nineteen hundred and ninety four (1 August
1994).
ARTICLE 2. DEFINITIONS
Under this directive, the following terms shall mean:
Directive: directive No. 1/94 on the assignment of defence
counsel as approved by the Tribunal on 28 July 1994;
President: the President of the Tribunal;
Registrar: the Registrar of the Tribunal;
Rules:the Rules of Procedure and Evidence adopted by the
Tribunal 11 February 1994;
Rules of detention: the Rules for the detention of persons
pending trial or appeal before the Tribunal or detained on the
orders of the Tribunal;
Statute: the Statute of the Tribunal adopted by the Security
Council under Resolution 827 (1993) of 25 May 1993;
Tribunal: the International Tribunal for the Prosecution of
Persons Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of the Former
Yugoslavia since 1991;
Stage of procedure: each of the stages of procedure laid down
by the Rules in which the suspect or the accused may be
involved (investigation, indictment, proceedings in the trial
chamber, appeal, review).
ARTICLE 3. RIGHT TO COUNSEL
Without prejudice to the right of an accused to conduct his
own defence, a suspect who is being questioned by the
Prosecutor during an investigation and an accused upon whom
personal service of the indictment has been effected, shall have
the right to be assisted by counsel provided that he has not
waived his right to counsel.
ARTICLE 4. PERSON TO WHOM COUNSEL IS
ASSIGNED
(A) If he has insufficient means, the suspect during an
investigation or the accused prosecuted before the Tribunal
may be assigned counsel free of charge on the following terms
and conditions:
(B) If the suspect or accused,
(i) either requests assignment of counsel but does not comply
with the requirements set out below within a reasonable time,
(ii) or fails to obtain counsel or to request assignment of
counsel, or to elect in writing that he intends to conduct his
own defence,
the Registrar shall nevertheless assign him counsel in the
interests of justice in accordance with Rule 45 (E) of the Rules
and without prejudice to Article 19.
ARTICLE 5. INDIGENCY
A person shall be considered to be indigent if he does not have
sufficient means to engage counsel of his choice and to have
himself legally represented or assisted by counsel of his
choice.
ARTICLE 6. REQUEST FOR ASSIGNMENT OF
COUNSEL
Subject to the provisions of Article 22, a suspect or accused
who wishes to be assigned counsel shall make a request to the
Registrar of the Tribunal by means of the form included in
Annex I. A request shall be lodged with the Registry, or
transmitted to it, by the suspect or accused himself or by a
person authorized by him to do so on his behalf.
ARTICLE 7. APPLICANT'S FINANCIAL SITUATION
(A) A suspect or accused who requests the assignment of
counsel, must fulfil the requirement of indigency as defined in
Article 5.
(B) In order to determine whether the suspect or accused is
indigent, there shall be taken into account means of all kinds of
which he has direct or indirect enjoyment or freely disposes,
excluding any family or social benefits to which he may be
entitled. In assessing such means, account shall also be taken
of the means of the spouse of a suspect or accused, as well as
those of persons with whom he habitually resides.
(C) Account shall also be taken of the apparent lifestyle of a
suspect or accused, and of his enjoyment of any property,
movable or immovable, and whether or not he derives income
from it
ARTICLE 8. DECLARATION OF MEANS
For the purposes of Article 7, the Registrar shall invite a
suspect or accused requesting the assignment of counsel to
make a declaration of his means on the form included in Annex
II.
ARTICLE 9. CERTIFICATION OF THE DECLARATION
OF MEANS
A declaration must, so far as possible, be certified by an
appropriate authority, either that of the place where the suspect
or accused resides or is found or that of any other place
considered appropriate in the circumstances which it shall be
for the Registrar to assess. If the declaration is not certified
within a reasonable period of time, the Registrar may assign
counsel and without prejudice to Articles 10 and 19.
ARTICLE 10. INFORMATION
For the purpose of establishing whether the suspect or accused
satisfies the requisite conditions for assignment of counsel, the
Registrar may request the gathering of any information, hear
the suspect or accused, consider any representation, or request
the production of any documents likely to support the request.
ARTICLE 11. DECISION BY THE REGISTRAR
After examining the declaration of means laid down in Article
8 and relevant information obtained pursuant to Article 10, the
Registrar shall determine if the suspect or accused is indigent
or not, and he shall decide:
(i) without prejudice to Article 19, either to assign counsel and
choose for this purpose a name from the list drawn up in
accordance with Article 14; or,
(ii) not to grant the request for assignment of counsel, in
which case his decision shall be reasoned.
ARTICLE 12. NOTIFICATION OF THE DECISION
(A) The Registrar shall notify the suspect or accused his
decision.
(B) He shall also notify his decision to the counsel so
assigned and to his professional or governing body.
ARTICLE 13. REMEDY AGAINST A DECISION NOT TO
ASSIGN COUNSEL
(A) The suspect whose request for assignment of counsel has
been denied may seek the President's review of the decision of
the Registrar. The President may either confirm the Registrar's
decision or decide that a counsel should be assigned.
(B) The accused whose request for assignment of counsel for
his initial appearance has been denied, may make a motion to
the Trial Chamber before which he is due to appear for
immediate review of the Registrar's decision. The Trial
Chamber may either confirm the Registrar's decision or decide
that a counsel should be assigned.
(C) After the initial appearance of the accused, an objection
against the denial of his request for the assignment of counsel
shall take the form of a preliminary motion by him before the
Trial Chamber not later than 60 days after his first appearance
and, in any event, before the hearing on the merits.
ARTICLE 14. PRE-REQUISITES FOR THE ASSIGNMENT
OF COUNSEL
Any person may be assigned as counsel if the Registrar is
satisfied that he fulfils the following pre-requisites:
(i) he is admitted to practice law in a State or is a professor of
law at a university or similar academic institution,
(ii) he speaks one of the working languages of the Tribunal,
namely, French and English,
(iii) he agrees to be assigned as counsel by the Tribunal to
represent a suspect or accused, and
(iv) his name has been included in the list envisaged in Article
45 (A) of the Rules.
ARTICLE 15. PROFESSIONAL CERTIFICATION
In support of the pre-requisite provided for in Article 14 (i),
the Registrar shall be supplied with certification of
professional qualification issued by the competent professional
or governing body.
ARTICLE 16. SCOPE OF THE ASSIGNMENT
(A) A suspect or accused shall only be entitled to have one
counsel assigned to him and that counsel shall deal with all
stages of procedure and all matters arising out of the
representation of the suspect or accused or of the conduct of
his defence.
(B) Where persons accused of the same or different crimes are
jointly charged or tried, each accused shall separately be
entitl~ed to request assignment of counsel.
ARTICLE 17. APPLICABLE LAW
In the performance of their duties, counsel assigned shall be
subject to the relevant provisions of the Statute, of the Rules,
of the Rules of Detention, of any other rules or regulations
adopted by the Tribunal, of the Host Country Agreement and
of this Directive, and of the codes of practice and ethics
governing their profession.
ARTICLE 18. RESPONSIBILITY FOR COSTS AND
EXPENSES
(A) Where counsel has been assigned, the costs and expenses
of legal representation of the suspect or accused necessarily or
reasonably incurred shall be met by the Tribunal subject to any
budgetary constraints.
(B) Such costs and expenses to be met by the Tribunal shall
include costs relating to investigative and procedural steps,
measures taken for the production of evidence to assist or
support the defence, as well as expenses for ascertainment of
the facts, consultancy and expert opinion, transportation and
accommodation of witnesses, postal charges, registration fees,
taxes or similar duties, and all remuneration due to counsel in
accordance with Articles 23 and 30.
(C) The Financial Officer of the Registry shall reimburse the
sums claimed by assigned counsel for the expenses as
provided in paragraph (A) and (B) above on receipt of a
statement of expenses made out using the form included in
Annex III which must be approved by the Registrar.
ARTICLE 19. WITHDRAWAL OF ASSIGNMENT
(A) Assignment of counsel may be withdrawn by the
Registrar if, after his decision, the suspect or accused comes
into means which, had they been available at the time the
request in Article 6 was made, would have caused the
Registrar not to grant the request.
(B) Assignment of counsel may be withdrawn if information
obtained according to Article 10 establishes that the suspect or
accused has sufficient means to allow him to pay for the cost
of his defence.
(C) The decision to withdraw the assignment shall be
reasoned and notified to the suspect or accused and to the
counsel assigned. Such withdrawal shall take effect from the
date of receipt of the notification.
(D) After the notification of the withdrawal of the assignment
of counsel, all the costs and expenses incurred by the
representation of the suspect or accused shall cease to be met
by the Tribunal upon replacement.
(E) The provisions of Article 13 shall apply mutatis mutandis
where there is dissatisfaction against the decision withdrawing
the assignment of counsel.
ARTICLE 20. WITHDRAWAL UPON DECISION BY A
CHAMBER
(A) Upon decision by a Chamber either to refuse audience to
assigned counsel for misconduct under Rule 46 (A), or to
grant the request of an accused to be assigned another counsel,
the Registrar shall then withdraw the assignment.
(B) The withdrawal shall be notified to the accused, to the
counsel concerned and to his professional or governing body.
(C) The Registrar shall immediately assign a new counsel to
the suspect or accused.
ARTICLE 21. REPLACEMENT
Where the assignment of counsel is withdrawn by the
Registrar or where the services of assigned counsel are
discontinued, the counsel assigned may not withdraw from
acting until either a replacement counsel has been provided by
the Tribunal or by the suspect or accused, or the suspect or
accused has declared his intention in writing to conduct his
own defence.
ARTICLE 22. ASSIGNMENT OF COUNSEL AWAY
FROM THE SEAT OF THE TRIBUNAL
(A) Away from the seat of the Tribunal, and in a case of
urgency, a suspect who, during the investigation, requests
assignment of counsel, may indicate the name of counsel if he
knows one who may be assigned in accordance with the
provisions of this Directive.
(B) Where the suspect fails to indicate a name, the Prosecutor,
or a person authorized by him or acting under his direction,
may contact the local Bar Association and obtain the name of
counsel who may be assigned in accordance with the
provisions of this Directive.
(C) In the situations envisaged in paragraphs (A) and (B), the
procedure for assignment of counsel as set out in this Directive
shall apply mutatis mutandis but shall be accelerated where
necessary.
ARTICLE 23. REMUNERATION PAID TO ASSIGNED
COUNSEL
(A) The remuneration paid to assigned counsel for any one
case and at any one stage of the procedure shall include:
(i) a fixed rate,
(ii) fees calculated on the basis of a fixed daily rate applied at
any stage of the procedure to the number of days of work, and
(iii) a daily allowance calculated on the basis of fixed rates as
established by the United Nations Schedule of Daily
Subsistence Allowance Rates applied to the number of days of
work;
(B) Assigned counsel who receives remuneration from the
Tribunal, shall not be entitled to receive remuneration from any
other source.
ARTICLE 24. FIXED RATE
The fixed rate envisaged in Article 23 (A) (i) shall be
equivalent to four hundred US Dollars (US$ 400.00).
ARTICLE 25. FEES
The fixed daily rate for fees envisaged in Article 23 (A) (ii)
shall be equivalent to two hundred US Dollars (US$ 200.00).
ARTICLE 26. DAILY ALLOWANCE
(A) The fixed rate for the daily allowance envisaged in Article
23 (A) (iii) shall apply to the first period of two weeks.
(B) For successive periods of two weeks, a progressive
reduction of the rates set out in paragraph (A) above shall be
applied as follows:
-20% for the second period of two weeks, -40% for the third
period of two weeks, -60% for additional weeks.
ARTICLE 27. STATEMENT OF REMUNERATION
(A) Subject to the provisions of Article 28, payment of the
fees envisaged in Article 23 (A) shall be made at the
conclusion of the relevant stage of procedure, on presentation
by counsel of a detailed statement using the form included in
Annex IV.
(B) The statement shall indicate, inter alia, the name of one
suspect or the accused, the registrar number in the Record
Book, the stage of the procedure at which assigned counsel
was involved and the number of days of work.
ARTICLE 28. PROVISIONAL PAYMENT
(A) When the engagement of assigned counsel has lasted
more than two weeks, a provisional payment of the fees and
daily allowance set out in Article 23 (A) (ii) and (iii) above
may be made for each period of two weeks served, on
presentation by counsel of a provisional statement covering the
corresponding period.
(B) Subject to the provisions of Article 29 the fixed rate shall
be paid in accordance with Article 27 on presentation of the
final statement by assigned counsel.
ARTICLE 29. PAYMENT PRO RATA TEMPORIS
When, during engagement, an assigned counsel is replaced in
the same capacity by another assigned counsel for whatever
reason, the remuneration shall be paid to each of them pro rata
temporis.
ARTICLE 30. TRAVEL EXPENSES
(A) Travel expenses shall be reimbursed for an assigned
counsel who does not usually reside in the territory of the host
country or in the country where the particular stage of the
procedure is being conducted, on the basis of one economy
class round trip air ticket by the shortest route or within limits
laid down by the Registrar, on presentation of a statement of
travel expenses using the form included in Annex V,
accompanied by the original counterfoil of the ticket.
(B) Travel expenses shall be reimbursed to assigned counsel
residing in the territory of the country but not in the town
where he is serving, on the basis of either first class public
transportation tickets or fixed rates as established by the
United Nations Schedule of Rates of Reimbursement for
Travel by Private Motor Vehicle applicable to different groups
of Countries and Territories, per kilometre travelled on the
outward and return journeys by the shortest route, on
presentation of a statement of travel expenses using the form
included in Annex V.
(C) Notwithstanding paragraphs (A) and (B), the Registrar
shall assess, after consulting the President and depending on
the circumstances of the case, whether the Tribunal, in the
interests of justice and in order to ensure the full exercise of
defence rights, is required to meet other travel expenses of
assigned counsel.
ARTICLE 31. FINANCIAL OFFICER OF THE REGISTRY
(A) All sums payable to assigned counsel under the
provisions of this Directive shall be paid by the Financial
Officer of the Registry.
(B) The statement of expenses, the statement of remuneration
(be it provisional or final) and the statement of travel expenses
envisaged under Articles 18, 27, 28 and 30, must receive the
prior approval of the Registrar.
ARTICLE 32. ADVISORY PANEL
(A) An Advisory Panel shall be set up consisting of two
members chosen by the President by ballot from the list
referred to in Article 1., two members proposed by the
International Bar Association, two members proposed by the
Union International des Avocats, and the President of the
Nederlandse Orde van Advokaten or his representative.
(B) The President of the Advisory Panel will be the President
of the Nederlandse Orde van Advokaten or his representative.
The membership of the Advisory Panel shall come up for
appointment every two years on the anniversary date of the
entry into force of this Directive.
(C) The Advisory Panel may be consulted as and when
necessary by the Registrar or the President on matters relating
to assignment of counsel.
(D) The Advisory Panel may also of its own initiative refer to
the Registrar any matter relating to the assignment of counsel.
ARTICLE 33. SETTLEMENT OF DISPUTES
In the event of disagreement on questions relating to
calculation and payment of remuneration or to reimbursement
of expenses, the Registrar shall make a decision, after
consulting the President and, if necessary, the Advisory Panel,
on an equitable basis.
ARTICLE 34. PROVISION OF FACILITIES
(A) Assigned counsel who do not have professional facilities
close to the seat of the Tribunal shall, subject to availability of
space and resources, be provided with reasonable facilities and
equipment such as photocopiers, computer equipment, various
types of office equipment, and telephone lines.
(B) At the seat of the Tribunal, assigned counsel may use the
libraries and the documentation centre used by the Judges of
the Tribunal.
LIST OF ANNEXES TO DIRECTIVE NO.1/94
Annex I: Request for assignment of counsel (form D1/1)
Annex II: Declaration of means (form D1/2)
Annex III: Statement for reimbursement of expenses (form
D1/3)
Annex IV: Statement of fees (form D1/4)
Annex V: Statements of travel expenses (form D1/5)
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