Decision by Registrar concerning Request by Defence for Additional Resources

Introduction

On 3 May 2006 the Defence filed a request for additional funds on the basis of regulation 83 of the Regulations of the Court in order that the defence team could employ two further judicial assistants, one or more highly qualified defence agent(s), and put in place reasonable additional funds for the preparation of reports during the transitory phase of the trial. The appellant also requested the adoption of a new budget for investigations, a minimum of three additional P2 level investigators, and the possible recruitment of further temporary investigators if necessary. Regulation 83 provides that legal assistance paid by the Court shall cover all costs reasonably necessary as determined by the Registrar for an effective and efficient defence, including the remuneration of counsel and such other itemised expenditure. Further, subsection (3) allows for a person receiving legal assistance to apply to the Registrar for additional means which may be granted depending on the circumstances of the particular case.

The Registrar found that the requests had to be evaluated based on whether, if granted, the costs incurred could be deemed “reasonably necessary as determined by the Registrar for an effective and efficient defence.” The decision was divided into two distinct issues: the composition of the defence team and the request for additional funds for the investigations team.

The composition of the defence team

Concerning the composition of the defence team, the Registrar noted that the current declaration of the court concerning legal aid regulates the composition of the teams for the different phases of the trial procedure. The Defence team for the trial phase are given a P-5 level legal counsel, and a P-4 level juridical counsel, a P-2 level juridical assistant or counsellor, a G5 level assistant, and other human resources provided for in the investigations budget. The P-5 and P-4 level counsel satisfy the requirements set out in Rule 22 of the Rules of Procedure and Evidence, and regulation 67 of the Regulations of the Court, namely that they have an internationally recognized competence in international or criminal law and in procedural matters; and that they have acquired at least 10 years of relevant experience in the criminal process in the position of a judge, lawyer or prosecutor.

Rejection of request for additional defence counsel

The Defence’s request for the addition of one or more highly qualified defence counsel was rejected by the Registrar on a number of grounds, most critically that the number of counsel needed was not specified and their function was not fixed but dependent on the “evolution of the case.” The Registrar found that the vague character of the request did not allow him to determine if the additional counsel were “necessary to assure a strong and effective defence” as is required by regulation 83(1) of the Regulations of the Court. The Registrar noted that the team already consisted of a P-5 counsel and P-4 level defence counsel authorised to work immediately on the case without waiting for the first audience before the Chamber as is normally required, and that these two counsel fulfilled the requirements of Rule 22 of the Rules of Procedure and Evidence, and regulation 67 of the Regulations of the Court. The Registrar believed that the activities envisaged by the defence could be reasonably fulfilled by the counsel, or by a P-2 level juridical assistant.

Concerning the Defence team’s request for an additional P-1 assistant and additional P-2 assistant, the Registrar considered the allowance of an additional P-2 assistant to the defence team necessary to assure a strong and effective defence. However, the Registrar considered that the work which the defence team envisaged would be undertaken by an additional P-1 juridical assistant could reasonably be undertaken by other members of the defence team and so did not meet the requirements of regulation 83(1) and was therefore rejected.

Additional resources granted to facilitate transition to new defence counsel

The Registrar accepted that the additional resources requested by the Defence team for the transitory phase of the trial were needed for a smooth transfer of the case between outgoing counsel and new counsel and for updating new members of the team. The Registrar noted that the outgoing counsel continued to work on the case after their withdrawal was authorised by the Chamber and had billed for the hours worked in March and April, and that the juridical assistant (P-2) and assistant (G-5) have been kept on the team, been remunerated, and that their knowledge of the case would facilitate the transition. Therefore, taking note of the specific circumstances, and in order to ensure the rights of the appellant, in accordance with regulation 83(3) of the Regulations of the Court the Registrar authorised the previous counsel, if he accepts, to assist the defence team as a consultant for three months in order to pass on his knowledge of the case. He would receive the hourly remuneration accorded to permanent counsel as set out in the declaration concerning court expenses. If not, then the equivalent remuneration for three months would be allocated to the defence team to fund an alternative arrangement which the Defence deemed appropriate.

Allocation of additional funds to the investigations team

In addressing the second issue of the allocation of additional funds to the investigations team, the Registrar decided to allocate to the defence team an additional budget of 55,315 euros for further investigation in order to meet the requirements of regulation 83(1) of the Regulations of the Court. However, the Registrar rejected the request for three additional investigators indicating that the cost of additional investigators could be adequately met in the additional budget of 55,315 Euros awarded, and that they were not essential to meet the requirements set out in regulation 83 of the Regulations of the Court.

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