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Assessment of the ICC's Legal Aid System

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Assessment of the ICC's Legal Aid System Global Diligence LLP: international law and human rights compliance www.globaldiligence.com Assessment of the ICC’s Legal Aid System Richard J. Rogers 5 January 2017 TABLE OF CONTENTS PART I 6 I. INTRODUCTION 6 A. MANDATE 6 B. CONSULTATION AND COMPARISON 7 C. PRELIMINARY POINTS 8 II. SUMMARY 10 A. LIST SYSTEM AND RESOURCES 10 I. LIST SYSTEM AND ASSIGNMENT OF COUNSEL 10 II. TEAM COMPOSITION 11 III. INVESTIGATION AND EXPERT BUDGET 11 IV. ADDITIONAL MEANS 12 V. REMUNERATION 12 VI. EXPENSES BUDGET 13 B. PROCEDURE FOR MONITORING FEES 13 PART II: LEGAL AID FOR DEFENCE 15 III. COMPARISON CHARTS 15 IV. INDIGENCE DETERMINATION 21 A. THE ICC SYSTEM 21 B. ANALYSIS 21 C. RECOMMENDATIONS 23 V. TEAM COMPOSITION 24 A. ICC SYSTEM 24 B. COMPARISON 25 I. ECCC 25 II. STL 27 III. ICTY / MICT 28 C. CONSULTATION 28 D. ANALYSIS 28 E. RECOMMENDATIONS 30 VI. INVESTIGATION AND EXPERT BUDGET 31 A. ICC SYSTEM 31 B. COMPARISON 32 I. ECCC 32 II. ICTY / MICT 32 III. STL 33 1 LAS Report, Jan 2017 Global Diligence LLP is a Limited Liability Partnership registered in England and Wales with registration number OC383469 C. CONSULTATION 33 D. ANALYSIS 34 I. CONSOLIDATING THE INVESTIGATION AND EXPERT BUDGETS 34 II. LEVEL OF BUDGET 35 E. RECOMMENDATIONS 36 VII. ADDITIONAL MEANS 37 A. ICC SYSTEM 37 B. COMPARISON 38 I. ECCC 38 II. ICTY / MICT 38 III. STL 39 C. CONSULTATION 39 D. ANALYSIS 40 E. RECOMMENDATIONS 41 VIII. REMUNERATION 41 A. ICC SYSTEM 41 I. BASIC FEE LEVELS 41 II. PROFESSIONAL UPLIFT 42 III. MULTIPLE CASES 44 IV. REDUCED ACTIVITY 44 B. COMPARISON 44 I. ECCC 45 II. ICTY 45 III. MICT 47 IV. STL 48 C. CONSULTATION 49 D. ANALYSIS 50 I. THE APPLICABLE PRINCIPLE 50 II. THE 2012 CALCULATION 51 III. HOW TO DETERMINE EQUIVALENCE? 52 IV. ESTABLISHING THE RIGHT FEE LEVELS 54 V. PROFESSIONAL UPLIFT—DIFFERING OR CONSISTENT LEVELS? 56 VI. HOURLY AND MONTHLY RATES 57 VII. MINIMUM FEE LEVELS 58 VIII. TAX-FREE EARNINGS FOR LAWYERS AND CONSULTANTS 59 E. RECOMMENDATIONS 60 I. FEE LEVELS 60 II. PROFESSIONAL UPLIFT 60 III. MINIMUM FEE LEVELS 61 IV. TAXATION AGREEMENT 61 IX. EXPENSES 61 A. ICC SYSTEM 61 2 LAS Report, Jan 2017 Global Diligence LLP is a Limited Liability Partnership registered in England and Wales with registration number OC383469 B. COMPARISON 62 I. ECCC 62 II. ICTY / MICT 63 III. STL 63 C. CONSULTATION 63 D. ANALYSIS 63 E. RECOMMENDATIONS 65 X. ADMINISTRATION OF THE LAS: PROCEDURES FOR PAYMENT OF LEGAL FEES 66 A. LAS ADMINISTRATION—OVERVIEW 66 I. CONSULTATION 66 II. ANALYSIS 67 III. RECOMMENDATIONS 68 B. LIST SYSTEM 69 I. ICC SYSTEM 69 II. CONSULTATION 69 III. ANALYSIS 70 IV. RECOMMENDATIONS 71 C. LEGAL SERVICES CONTRACT 72 I. ICC SYSTEM 72 II. COMPARISON 72 III. CONSULTATION 73 IV. ANALYSIS 73 V. RECOMMENDATIONS 73 D. PRE TRIAL FEE CLAIMS 73 I. ICC SYSTEM 73 II. COMPARISON 74 III. CONSULTATION 77 IV. RECOMMENDATIONS 80 E. TRIAL FEE CLAIMS 80 I. ICC SYSTEM 80 II. COMPARISON 80 III. CONSULTATION 82 IV. ANALYSIS 82 V. RECOMMENDATIONS 83 F. APPEAL STAGE FEE CLAIMS 84 I. ICC SYSTEM 84 COMPARISON 84 II. CONSULTATION 86 III. ANALYSIS 86 IV. RECOMMENDATIONS 87 G. REPARATIONS STAGE FEE CLAIMS 88 I. ICC SYSTEM 88 II. ANALYSIS 88 III. RECOMMENDATIONS 88 H. ARTICLE 70 CASES 89 3 LAS Report, Jan 2017 Global Diligence LLP is a Limited Liability Partnership registered in England and Wales with registration number OC383469 I. THE ROLE OF THE OPCD 89 I. ICC SYSTEM 89 II. CONSULTATION 90 III. ANALYSIS 91 IV. RECOMMENDATIONS 91 PART III: LEGAL AID FOR VICTIMS 92 I. INTRODUCTION 92 A. LAS FOR VICTIMS—OVERVIEW 92 B. PART III LIMITATIONS 93 II. CONSULTATION 94 III. INDIGENCE DETERMINATION 95 A. DISCUSSION 95 B. RECOMMENDATIONS 97 IV. ESTABLISHING AN OVERALL BUDGET 97 A. DISCUSSION 97 I. RATIONALE 97 II. CALCULATING AN OVERALL BUDGET 98 III. PLANNING THE EXPENDITURE 100 B. RECOMMENDATIONS 101 V. INVESTIGATIVE BUDGET / FIELD BUDGET 102 A. DISCUSSION 102 I. REDEFINING THE FIELD BUDGET 102 II. LEVEL OF BUDGET 103 B. RECOMMENDATIONS 104 VI. ADDITIONAL MEANS 104 A. DISCUSSION 104 B. RECOMMENDATIONS 105 VII. REMUNERATION AND EXPENSES 105 A. DISCUSSION 105 B. RECOMMENDATIONS 105 VIII. ADMINISTRATION OF THE LAS 105 A. DISCUSSION 105 B. RECOMMENDATIONS 106 ATTACHMENTS 108 4 LAS Report, Jan 2017 Global Diligence LLP is a Limited Liability Partnership registered in England and Wales with registration number OC383469 I. ATTACHMENT A: EXPERT’S CV 108 II. ATTACHMENT B: TRIBUNAL DEFENSE COST COMPARISON 110 III. ATTACHMENT C: LAS AT ICC-DEFENCE 115 IV. ATTACHMENT D: LAS AT ICC-VICTIMS 120 V. ATTACHMENT E: REPORT ON THE ASSESSMENT OF THE FUNCTIONING OF THE INTERNATIONAL CRIMINAL COURT’S LEGAL AID SYSTEM 125 5 LAS Report, Jan 2017 Global Diligence LLP is a Limited Liability Partnership registered in England and Wales with registration number OC383469 PART I I. INTRODUCTION A. Mandate 1. Richard J Rogers (“the Expert”) was engaged by the Registry of the International Criminal Court (“ICC” or “Court”) to undertake an assessment of the ICC’s Legal Aid System (”LAS”).1 Attachment A is the Expert’s CV. 2. The Expert’s Terms of Reference included the following: The Contractor shall undertake a comprehensive consultation with relevant stakeholders involved in (or affected by) the ICC’s legal aid system (LAS) for defendants and victims […] The Contractor shall research the legal aid systems in three other UN assisted criminal tribunals, including the overall financial costs of defence and victim support [...] The Contractor shall draft a report aimed at improving the functioning (efficiency and effectiveness) of the LAS for defendants and victims. The analysis and recommendations shall take account of any relevant judicial decisions issued by the ICC and be guided by the following considerations: a. The need to ensure the fair trial rights of defendants, including the equality of arms; b. The importance of effective victims participation in the ICC, including independent legal representation; c. The need for responsible and efficient use of public funds. 1 During its 12th session, the Assembly of States Parties adopted Resolution 8. Annex I, paragraph 6(c) reads: “With regard to Legal Aid […] requests the Court to, in support of the on- going reorganization and streamlining of the Registry, engage independent experts to reassess the functioning of the legal aid system and to report on its findings to the Bureau within 120 days following the completion of the first full judicial cycles. Such reassessment should pay special regard to the determination of indigence and the resources required for the legal representation of victims, including the ability of counsels to consult with victims”. 6 LAS Report, Jan 2017 Global Diligence LLP is a Limited Liability Partnership registered in England and Wales with registration number OC383469 3. The Terms of Reference required the Expert to submit a report “Assessment of the ICC’s Legal Aid System” (“Report”) containing an analysis of the current LAS and recommendations for improving the efficiency and effectiveness of the LAS for both defendants and victims. 4. It is worth noting that this Report is not part of the Registry’s ReVision project. The Expert’s mandate is restricted to an assessment of the LAS—it does not cover the broader structural issues relating to the Office of Public Counsel for Defence (“OPCD”), the Office of Public Counsel for Victims (“OPCV”), and the Victims Participation and Reparations Section (“VPRS”). B. Consultation and Comparison 5. To compare the cost of the LAS at the ICC with the cost of legal aid at similar tribunals, the Expert sent a questionnaire to the relevant actors in the registry and / or defence office at the International Criminal Tribunal for former Yugoslavia (“ICTY”), the United Nations Mechanism for International Criminal Tribunals (“MICT”), the Special Tribunal for Lebanon (“STL”), and the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) (collectively “other tribunals”). Attachment B is the questionnaire sent to the other tribunals. 6. As part of the consultation process, the Expert met with staff in the ICC Registry (including staff in the CSS, OPCD, OPCV, and VPRS sections) as well as the President’s office. 7. The Expert also met with independent lawyers engaged in international cases at the ICC and the other tribunals, including the recently elected President of the International Criminal Court Bar Association (“ICCBA”). In addition, the Expert distributed a questionnaire (in English and French) to counsel, legal assistants, and case managers who had been, or are engaged in cases at the ICC. 7 LAS Report, Jan 2017 Global Diligence LLP is a Limited Liability Partnership registered in England and Wales with registration number OC383469 The questionnaire made clear that ‘sufficient resources’ means “the minimum level of resources that are reasonable and necessary for an effective defence, not the ideal level.” Over 25 independent lawyers provided their views in person or through the questionnaire. Attachment C and D are the questionnaires sent to independent lawyers. 8. The above actors were extremely helpful and provided essential information and insight into the challenges relating to legal aid management at the ICC and the other tribunals. The Expert would like to thank all those who took the time out of their busy schedules to assist. 9. The Expert also took careful note of the Report on the Assessment of the Functioning of the International Criminal Court's Legal Aid System by the International Criminal Justice Consortium’s (“ICJC”) independent legal aid experts. The ICJC’s report outlined the views of ICC staff, independent counsel, NGOs, and highlighted many of the main issues of concern. The initial research and insight offered by the ICJC experts provided a valuable foundation for this Report.
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