Gender Report Card on the International Criminal ... - YWCA Canada

Judiciary – Key Decisions Legal Representation
of the parties to the proceedings, the Registry limited
Lubanga’s legal assistance to one lead counsel, a
legal assistant and a case manager. 2010 The Registry
indicated that the services of the OPCD would remain
at the disposal of the Lubanga Defence.
The Defence notified the Chamber of the Registrar’s
decision on 5 August and, pursuant to Regulation
135(2) of the Regulations of the Registry, 2011 filed
a request for review of that decision on 19 August
2011. 2012 The Defence submitted that the decision
by the Registry was in violation of Article 67(1) of the
Rome Statute. The Defence reiterated that the Court’s
legal aid system is premised on equality of arms,
objectivity, transparency, continuity and economic
need. Under these principles, the Defence argued that
the ‘trial’ begins when the case has been transmitted
to a Trial Chamber and concludes only with the final
judgement by that Trial Chamber, not with the closing
arguments by the parties and participants. 2013 The
Defence stated that the Registry’s decision of 22 July
in effect dissolves the Defence team before the end of
trial. 2014 Taking note that the Office of the Prosecutor’s
team is not subject to similar cuts, Lead Defence
Counsel Mabille requested that a reduced team,
consisting of a lead counsel, an associate counsel and
two legal assistants remains in place for the remainder
of the trial. 2015
On 30 August 2011, Trial Chamber I rejected the
Registry’s decision of 22 July 2011. 2016 The Chamber
confirmed the Defence submission that the trial
‘only comes to an end when the Article 74, 75 and
76 decisions 2017 have been delivered’. The Chamber
confirmed that the accused enjoys his full rights under
Article 67 of the Rome Statute at least until the end of
that phase, including his right to legal assistance. The
Chamber noted that ‘the overarching consideration
in this context is the accused’s right to a fair trial
under Article 67 of the Statute’ rather than, as the
Registrar contends, the maintenance of the Court’s
limited resources. 2018 The Chamber also noted that ‘if
the accused’s right to an effective defence is infringed,
a fair trial for the accused is no longer possible’. 2019
Accordingly, the Chamber instructed the Registry to
retain the Defence team of lead counsel, associate
counsel and two legal assistants until the Chamber has
rendered its Article 74, 75 and 76 decisions; to ensure
that the members of the defence team continue to
have electronic access to their own files and evidence;
reappraise the team’s office space requirements;
and ensure that the defence team has access to the
accused. 2020
2010 ICC-01/04-01/06-2790-Anx1-tENG, p 3.
2011 Regulation 135(2) provides that ‘within 15 calendar days
of notification, counsel may request the Chamber to
review any decision taken under sub-regulation 1’.
2012 ICC-01/04-01/06-2790-tENG.
2013 ICC-01/04-01/06-2790-tENG, para 18.
2014 ICC-01/04-01/06-2790-tENG, paras 22-24.
2015 ICC-01/04-01/06-2790-tENG, para 32.
2016 ICC-01/04-01/06-2800.
2017 Article 74 relates to the requirements for the final
decision in a trial by a Trial Chamber; Article 75 deals
with reparations for victims; Article 76 sets out the
requirements for sentencing.
2018 ICC-01/04-01/06-2800, paras 53-54.
2019 ICC-01/04-01/06-2800, para 54.
2020 ICC-01/04-01/06-2800, para 63.
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