legal representatives submission july2009[1]

8/14/2019 Legal Representatives Submission July2009[1]

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THE ORGANISATION OF LEGAL REPRESENTATION

LEGAL AID AND THE OPCV : COUNSELS EXPERIENCE

1. Principles

Under Rule 90.1, the basic principle as adopted by States provides that a victim shall

be free to choose a legal representative. Paragraph 2 of the same Rule brings a nuance to

this principle, stating that the Chamber may request that victims organise a system of

common representation in order to facilitate the coordination of victimrepresentation. This principle is based not on reasons of economy, but to ensure the

effectiveness of the proceedings.

An Office of Public Counsel for Victims was established under Regulation 81 of the

Regulations of the Court; the function of this Office is determined under point 4 of

this Regulation, which provides that the Office shall provide support and assistance to

the legal representative for victims and to victims, including, where appropriate:

(a) Legal research and advice; and

(b) Appearing before a Chamber in respect of specific issues

However, Regulation 80.2 states that the OPCV can itself be appointed legal

representative of victims by the Chamber.

2. The OPCV in The Prosecutor v. Thomas Lubanga Dyilo proceedings

Legal representatives before the Pre-Trial Chamber in the Lubanga case benefited

from extremely precious assistance from the OPCV. During the confirmation of

charges hearing, the Office provided counsel with daily hearing analyses, served as

de facto case manager for the two teams of legal representatives, and spontaneously

provided legal advice on all points of law raised during hearing discussions. During

the course of the entire preparatory phase, two to three members of the Office were

present at each hearing in order to provide assistance to legal representatives, who

regularly gave the Office mandate to represent them at status conferences.

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In its decision dated 6th of March 20061, the Chamber deemed that, during this early

stage in the Court's existence it is critical that the Office concentrates its limited resources on

the core functions given to it under the Rome Statute framework which, as set out above, is to

provide support and assistance to the legal representatives of victims and to victims who have

applied to participate (rather than representing individual victims). The Chamberconsequently decided that As regards those victim applicants currently represented by

the Office of Public Counsel for Victims, the Office shall continue to represent them until the

Chamber issues a decision on their application to participate. Thereafter, the Registrar shall

arrange for a legal representative to act for them, []. Legal representatives have

supported this approach.

It has not been possible to fully implement this decision however, due to the fact that

authorisation to participate in proceedings was granted to the majority of victims

only a few weeks before the opening of the trial; this notably resulted in a problemfor four victims represented by the OPCV and who were to appear as witnesses in

the first weeks of trial. Exceptionally, the Chamber therefore maintained the

appointment of the Office as counsel for the entire course of the proceedings for these

victims, but invited four other victims, who they themselves were not to testify, to

choose between the already constituted teams of legal representatives. This decision

was carried out without a problem.

Although this decision was taken in agreement with the legal representatives, it

changed the relationship between them and the OPCV. The Office now functions as

an independent team, alongside the two teams of independent counsel. These teams

are both represented by a single counsel each at hearings (the different team counsel

each participate in turn according to a rotation scheme) and assisted by a case

manager. The OPCV is generally represented at hearings by a lead counsel and two

assistant counsels, and is supported by a case manager. There is therefore a

disproportion between the independent legal representatives and the OPCV, who

benefits from (much) more important means to represent only 3% of the total number

of victims.

Certainly, the two OPCV legal assistants following the hearings are in principleavailable to all counsel. As the Registrys report underlines, the means made available

to legal representatives take into account the fact that counsel benefit from support

from the OPCV for research and drafting legal briefs. In practice however, these

OPCV members now constitute with the lead counsel a third team of legal

representatives. The Office no longer shares with the other teams the hearing

analyses undertaken by its legal assistants. It no longer spontaneously provides legal

representatives with legal advice but only does so when a legal representative

formally requests it in writing.

1ICC-01/04-01/06-1211

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This situation has also resulted in a different relationship between legal

representatives and the OPCV when it comes to taking a position on issues of

common interest. Each team of counsels can have its own judicial strategy and its

own interpretation of certain legal questions, and this even in the absence of a formal

conflict of interest. In the past, legal representatives had the possibility of freely usingthe legal advice issued by the Office in order to independently draft their own

submissions, and where appropriate, a common submission for all teams. The Office

generally submits the position that it feels is the most legally correct, while legal

representatives largely analyse available elements of law according to the interests

they represent. Certain submissions filed by legal representatives could therefore

develop arguments that were not those of the OPCV.

This particular function of the Office as neutral expert at the disposal of legal

representatives is today under pressure. Its analyses on questions of commoninterest now constitute the position of one of the three teams. In the event of

disagreement between the Office and one or more of the other teams of counsel, it is

difficult to request that the Office carry out research that will be used to support a

position that is not its own. However, it has happened that the Chamber follow a

common position issued by legal representatives and to which the Office had initially

been opposed.

The assignment to the OPCV of a role of team of legal representatives has thereby

reduced its availability to the other teams and imposes on the latter a heavier

workload in terms of legal analysis and drafting of documents. There is a real risk of

seeing a spirit of competition develop between the Office and independent counsel.

In the Lubanga case, legal representation of victims could therefore have been

organised in a more efficient manner, under a system whereby all victims would

have been represented by the two teams of independent counsel, the latter being

supported by the four members of the OPCV currently working on the case.

Legal representatives of victims in the Katanga/Ngudjolo case have mentioned that

subsequent to an indication by Pre-Trial Chamber 2, whereby the OPCVs role duringthe confirmation of charges hearing of the case should be limited to support to

counsel outside of the courtroom, the Office reduced its availability to the legal

representatives. The Office declared that it no longer had French-speaking staff to

make available to the legal representatives as this staff was already assigned to the

Lubanga case.

In a case such as Katanga/Ngudjolo, where there are clear conflicts of interest

between the victims (ex. Katanga), having an Office who has to support all counsel

teams, and at the same time represent victims whose interests are in opposition tothose of victims represented by the other teams, would be even more problematic.

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3. Independent counsel

In the Lubanga case, the majority of victims who applied to participate inproceedings or for reparation approached external counsel, often through the

intermediary of a local or international NGO. Only in a minority of cases did victims

find their way to the Court via outreach activities organised on the ground by the

Registry. Over the course of months and years, victims have built a relationship of

trust with their counsel. It is clear that this was easier for victims to do with a counsel

of their own country, of their own region even, and who preferably speaks their own

language.

With one exception, victims were admitted to legal aid but a short time before theopening of the trial. More months, even years, their counsel worked pro bono and/or

assisted by an NGO.

In the Lubanga case, legal representatives were able to obtain a number of precedents

which were not a foregone conclusion:

- possibility for vulnerable victims to participate in proceedings under

anonymity

- possibility to question witnesses and to submit evidence during the hearing of

a witness.

- possibility to question context witnesses in the same conditions as the parties

- possibility to have victims personally testify

- possibility to educe elements of sexual slavery through precise questions to

girl witnesses and submissions addressing the issue of an possible

requalification

- communication in advance of documents produced by the OTP and the

Defence, to victims

- appointment by the Chamber of an expert suggested by the victims following

the filing of observations on a point of fact (the practice of names in the DRC)

- provision of elements of Congolese law during confirmation of charges

proceedings

Without underestimating the input of the OPCV, notably its legal research work, it

can be said that the intervention of independent counsel has each time been decisive.

In the Katanga case, independent counsel have also brought forth important

elements of Congolese law in the debate on admissibility.

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4. Suggestions and recommendations

Legal representatives believe that the mixed solution (OPCV as legal

representative alongside teams of independent counsel) exceptionally applied to the

Lubanga case is far from constituting a model for trial proceedings, and that OPCVintervention during the entire course of a trial is counterproductive.

Decisions on applications for participation in proceedings and on the organisation of

a common legal representation should be taken by the Chambers as soon as possible,

before the confirmation of charges hearing or at least a number of months before the

start of the trial, so that the different lawyers composing a given team can get

accustomed to collaborating, have time to coordinate and to familiarize themselves

with all the victims represented by the team.

If the OPCV does ensure the representation of victims in debates on admissibility of

these requests, it should on the outset inform the victims of their right to an

independent counsel as soon as their request is accepted.

During the confirmation of charges hearing and during the trial, it is primordial that

counsel can independently elaborate a judicial strategy in coordination with their

clients and within their respective teams. it is just as important that counsel can count

on effective support on the part of the OPCV , not only for research and legal advice,

but also to represent them during the numerous status conferences which usually

last only one or two days.

Good collaboration and a relation of trust between legal representatives and the

OPCV should enable counsel to avoid having to travel to The Hague for a large

number of status conferences. By representing a counsel, the Office must follow the

latters instructions and draft a report of its intervention.

Total internalisation of legal aid to victims could moreover result in a sharp decrease

in the number of victims who find their way to the Court. The Office would find it

more challenging than for independent counsel to maintain contact with all thevictims, and would have to devote more resources to this. There is a risk that victim

representation would evolve towards a situation which could be compared to one of

an amicus curiae , instead of enabling victims to intervene in proceedings, which

was the aim of Article 68 of the Statute. This could cause frustration among the

majority of victims who contacted a lawyer in view of an intervention before the ICC,

and who have built a relationship of trust with that lawyer.

Communication with the victims on the ground and representation at hearings are

the strong points of independent counsel. The Office, however, shall always bestronger than counsel where management of legal information and of research tools

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is concerned. The two are therefore very complementary. Valorisation of the role of

the Office as support to legal representatives could improve victim representation as

a whole. The OPCV could notably play a more important role as collective memory

of victims, compared to legal representatives who come to The Hague for each case

and then go, but also because it holds the information and the memory of what ishappening in the other cases.

The Hague, 6 July 2009

Luc Walleyn

Herv DiakieseJean Mulamba

Franck Mulenda

Carine Bapita

Paul Kabongo

Joseph Keta

Fidel Nsita

Flora Mbuyu

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legal representatives submission july2009[1]

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