THE RIGHT TO A DEFENCE
The success and credibility of the ICTR and the ICTY, and by extension, the Mechanism, have depended greatly on the crucial role that a competent and robust defence plays in ensuring the right of the accused to a fair trial, and in upholding the principle of equality of arms between the Prosecution and the Defence. The right to a fair trial is a fundamental human right, and a basic principle of criminal justice. It applies equally to accused before the Mechanism, which will continue the jurisdiction, rights, obligations and essential functions of the ICTR and the ICTY.
The Right to Defence Counsel
All suspects and accused persons appearing before the Mechanism, and all persons detained under its authority, have the right to be represented by defence counsel. Accordingly, and if an accused wishes to be represented by defence counsel, the accused can either retain his own counsel or, if found indigent by the Registrar, be assigned one at the expense of the Mechanism. This, and other fundamental rights of the accused, are enshrined in Article 19 of the Mechanism’s Statute (Statute), and are further regulated in the Rules of Procedure and Evidence (Rules) and the Directive on the Assignment of Defence Counsel (Directive), ensuring that the legal assistance provided to the accused is effective and of the highest quality. Finally, and while there is no on-going right to legal aid once a case has reached finality, the Registry of the Mechanism does formally recognise counsel who are acting on behalf of a convicted person.
Assignment of Counsel and Legal Aid
As indicated above, accused persons who demonstrate that they cannot afford to pay for counsel, either in whole or in part, are entitled to the assignment of counsel, paid for by the Mechanism. As part of its provision of legal aid, the Mechanism also provides remuneration for support staff assisting the assigned defence counsel. If the accused has means to remunerate counsel partially, the Mechanism will only cover that portion of the costs of the defence which the accused cannot bear. However, before counsel can be assigned to indigent (or, partially indigent) accused they need to be admitted to practice before the Mechanism. This legal aid system harmonizes and builds on the practices and policies of the ICTR and the ICTY.
For more information regarding the assignment of counsel, the required qualifications and procedures to be admitted to practice before the Mechanism, relevant remuneration policies, and more, please visit the defence counsel page, here.
The Right to Self-Representation
In accordance with Article 19(4)(d) of the Statute, an accused person may elect to represent himself in person. Where the Chamber seised of the case recognizes the accused’s right to self-representation and allows the accused to conduct his own defence, the Mechanism (through the Registrar) ensures the provision of adequate facilities so that the accused is in a position to exercise this right effectively.