Decision on two urgent requests filed by Mr. Thomas Lubanga Dyilo before the Presidency concerning the appointment of duty counsel.

On 29 June 2007, the Presidency issued its decision on the “Urgent request per Rule 21(3) of the Rules of Procedure and Evidence” and on the “Urgent Request for the Appointment of a Duty Counsel” filed by Mr. Thomas Lubanga Dyilo (the Applicant) before the Presidency on 7 May 2007 and 10 May 2007, respectively. These filings by Mr. Lubanga concerned the Registrar’s appointment of duty counsel, Mr. Emmanuel Altit and Ms. Annick Mongo, pursuant to Orders of the Appeals Chamber and Pre-Trial Chamber I delivered on the 3 April and 19 April, respectively. Both duty counsel were to exercise a limited mandate relative to filing specific documents before the respective Chambers.[1]

Background to the decision

On 20 April, the Registrar requested that Mr. Lubanga select and compile from the list of counsel a shortlist of candidates to represent him as duty counsel.  Further to a request by Mr. Lubanga for additional information concerning the availability and qualifications of counsel on the list, the Registrar extended the deadline for selection to 4 May 2007. On 4 May, upon expiration of the deadline without indication from the defendant, the Registrar appointed duty counsel Mr. Altit and Ms. Mongo from the list of counsel to represent Mr. Lubanga. On that same day, Mr. Lubanga requested an extension of time within which to make his selection of duty counsel, a shorter list of counsel absent those who did not meet his criteria of availability and qualifications, and an opportunity to inspect the files of seven specific counsel on the list. The Registrar refused his request.

The Applicant subsequently filed two urgent requests before the Presidency on the dates aforementioned requesting the Presidency to inter alia review the Registrar’s decision to appoint Mr. Altit and Ms. Mongo as duty counsel or, in the alternative, to stay the decision appointing them and accept the appointment of duty counsel of the Applicant’s choice in accordance with regulation 73(2) of the Regulations of the Court. Regulation 73(2) provides that if any person requires legal assistance and has not yet secured same, or where his counsel is unavailable, the Registrar may appoint duty counsel taking into account the wishes of the person, the geographical proximity of and the languages spoken by the counsel. The Applicant submitted that the appointment of both duty counsel by the Registrar was tantamount to a refusal by the Registrar to assign counsel of his choice within the meaning of Rule 21(3) of the Rules of Procedure and Evidence. In response, the Registrar urged the Presidency to rule that the applications were inadmissible under Rule 21(3) and in the alternative that they be denied on the merits. Under Rule 21(3) an aggrieved person may seek from the Presidency a review of a decision to refuse a request for the assignment of counsel and the decision of the Presidency is final. A further request may be made to the Registrar after refusal if there is evidence of a change of circumstances.

In considering its decision, the Presidency took into account the following provisions: Article 67(1)(d) of the Rome Statute on the rights of the accused to ‘conduct his defence in person or through legal assistance of his choosing’ and to be informed of his right to have legal assistance assigned by the Court if the interest of justice so demands; Rule 20(1) (c ) of the Rules of Procedure and Evidence concerning the responsibilities of the Registrar relating to the rights of the Defence; Rule 21 which addresses the assignment of legal assistance, sub-paragraph (2) of which stipulates that the Registrar has the responsibility to create and maintain a list of counsel of the requisite criteria and sub-paragraph (3) referred to above; regulation 73 of the Regulations of the Court (previously referred) and regulation 129 of the Regulations of the Registry entitled the appointment of duty counsel.

The Decision of the Presidency On Admissibility

In considering its decision, the Presidency reiterated that it was the Registrar in whom was vested the primary administrative responsibility for managing the legal assistance scheme of the Court. As the actions of the Registrar who falls under the authority of the Presidency was administrative in nature, in the instant case the Presidency as the organ responsible for the proper administration of the Court had express powers to review the Registrar’s decision in relation to all circumstances concerning the assignment of Counsel or refusal of request pursuant to rule 21(3) of and regulation 73(2) of the Regulations of the Court. Secondly the Registrar’s contention that a decision challenging the appointed duty counsel who had been actively discharging their mandate upon appointment would have a deleterious effect on the proceedings was rejected as unsound on the basis that such reasoning if accepted would fetter the discretion of the Presidency to review even questionable decisions on appointment by the Registrar.

On the Merits

In rendering its decision on the merits, the Presidency assessed matters pertaining both to the right of the accused to choose counsel freely, and the specific issues arising from the appointment of Ms. Mongo and Mr. Altit such as competency of counsel and the number of duty counsel appointed. The Presidency opined that the right to choose one’s own counsel enshrined in Article 67(1)(d) of the Statute was not absolute, and that whilst a person’s wishes must be taken into account when appointing duty counsel, they may be overridden by the Registrar where there are reasonable and valid grounds to do so. However, the Registrar’s restrictive view of regulation 73(3), interpreting a person’s wishes solely as a request for a particular person, was rejected. The Presidency opined that the wishes of a person in regulation 73(2) included both the wishes of the person as to who was to be appointed as duty counsel as well as the specific criteria that should be met by the person appointed.

The Presidency found that the Registrar had acted reasonably in appointing two duty counsel, Ms. Mongo and Mr. Altit for two main reasons viz  (a) the Registrar was constrained to act within the deadlines imposed by the relevant Chambers in the instant case, taking into account the sense of urgency surrounding the proceedings, and he had given the Applicant ample time within which to consider the list of counsel provided to him and (b) both counsel had met the criteria set out in regulation 73 of the Regulations of the Court in terms of availability, language skills, proximity and competence, and the criteria set out by Mr. Lubanga in his letter of 25 April 2007. The President noted, however, that the Registrar had failed to consult with the Applicant prior to appointing two duty counsel and requested that in the future as a matter of practice the views of the person should be taken into account in determining the number of counsel to appoint, but provided the caveat that the consultation may be overridden if there were ‘relevant and sufficient grounds for doing so’.

The Presidency also took the opportunity to request that the Registrar establish and maintain a roster of duty counsel, in accordance with regulation 73 of the Regulations of the Court. Finally, the Presidency requested that the Applicant justify the confidential and ex parte labels attached to the applications, stating that the Presidency would rule on whether this classification should be maintained at a later date.

<back
<back to weeklist