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Judiciary – Key Decisions Legal Representation
more than the de minimis confidential information is
supported by the Registry’s <strong>Report</strong>. Nonetheless, the
Single Judge cautioned the Defence that, although Faal
is entitled to continue his representation, the Chamber
shall keep the issue under continuing review. 2000
Should it become clear throughout the proceedings
that Faal is indeed aware of substantial confidential
information, the Chamber ‘shall not hesitate to
invalidate his appointment’. 2001
On 26 July 2011, the Prosecution requested leave to
appeal two specific issues arising from the Single
Judge’s decision: (i) whether as a matter of law,
prosecution lawyers may join a defence team in a case
that was open at the time when the person worked
for the prosecution; and (ii) whether the correct test
to determine that person is ‘privy to confidential
information’ under Article 12(1)(b) [of the Code of
Professional Conduct] is whether that person has
become aware of more than de minimis confidential
information related to the relevant case. 2002 The
Prosecution submitted that the matter should be sent
to the Appeals Chamber for immediate resolution
given the potentially irreparable impact on the
fairness and integrity of the proceedings. 2003 In its
request for leave to appeal, the Prosecution reiterated
that ‘because of the size and the operational methods
of the Office of the Prosecution (and in particular the
Prosecution Division), any lawyer working there will
be unavoidably exposed to information of a privileged
nature in all ongoing cases, including facts, strategy
issues, internal concerns, and legal issues’. 2004 In
addition, because of the seniority of his position within
the Office of the Prosecutor, many of the OTP’s more
junior staff relied upon his expertise and sought his
advice on various matters. Leave to appeal was granted
on 18 August 2011. 2005 At the time of writing, the
Appeals Chamber has not yet issued a decision on this
appeal.
Legal aid for Defence in the
Lubanga case
As discussed in the section on the ASP –
Budget above, pursuant to Regulations 83, 84
and 85 of the Regulations of the Court and
Regulations 113 and 130-139 of the Regulations
of the Registry, the Registry shall provide legal
assistance to all persons with insufficient means
to pay for their legal counsel. Regulation 83
of the Regulations of the Court provides that
legal aid for the defence ‘shall cover all costs
reasonably necessary as determined by the
Registrar for an effective and efficient defence,
including the remuneration of counsel, his or
her assistants as referred to in regulation 68 and
staff, expenditure in relation to the gathering
of evidence, administrative costs, translation
and interpretation costs, travel costs and daily
subsistence allowances’. 2006 On 31 March 2006,
the Registry provisionally found Lubanga fully
indigent under Regulation 85(1) 2007 of the Rules
and Regulations of the Court, and determined
that the cost of his defence were to be born by
the Court’s legal aid scheme. 2008
On 22 July 2011, the Registry communicated a decision
by letter to the Defence team of Lubanga substantially
reducing the resources available to the Lubanga
Defence following the closing arguments in the case
at the end of August 2011. 2009 The Registry proposed
to cease all payments to the Lubanga Defence as of 30
August 2011, save for those of lead Defence counsel
Mabille, and requested the team to vacate one of
their offices at the Court, leaving the Defence team
with only one office. In case an appeal is filed by one
2000 ICC-01/09-02/11-185, para 30.
2001 ICC-01/09-02/11-185, para 30.
2002 ICC-01/09-02/11-195.
2003 ICC-01/09-02/11-195, para 3.
2004 ICC-01/09-02/11-195, para 16.
2005 ICC-01/09-02/11-253.
2006 Regulation 83(1), Regulations of the Court.
2007 Regulation 85(1) of the Regulations of the Court provides
that ‘the Registrar shall decide within one month of
the submission of an application or, within one month
of expiry of a time limit set in accordance with the
Regulations of the Registry, whether legal assistance
should be paid by the Court. The decision shall be
notified to the applicant together with the reasons
for the decision and instructions on how to apply for
review. The Registrar may, in appropriate circumstances,
make a provisional decision to grant payment of legal
assistance.’
2008 ICC-01/04-01/06-63.
2009 ICC-01/04-01/06-2790-Anx1-tENG.
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