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

Judiciary – Key Decisions Protection and Protective Measures
As summarised by the Chamber, the Prosecution did
not object to the Protocol. Its observations were limited
to emphasising the physical and psychological wellbeing
of vulnerable victims in those cases in which
the VWU is requested to perform an evaluation on
the victim. 2110 The Katanga Defence requested that
the Chamber reject the Protocol, asserting that the
Defence should enter into direct contact with the
victims themselves, rather than through their legal
representatives, to set up interviews for questioning.
It contended that the Code of Professional Conduct for
Counsel should not apply to the legal representatives
of victims. It also asserted that LRVs should not be
present during the questioning of the victims, nor
should the Defence be required to disclose related
documents. 2111 The Ngudjolo Defence requested
a delimiting of the rights and obligations of LRVs,
who should not attempt to influence their clients in
responding to the parties’ questions. 2112
The LRVs asserted that the Code of Professional
Conduct for Counsel does apply to them, and that
their obligations as counsel are not limited to seeking
reparations, but apply at all stages of the proceedings.
Specifically, they invoked Articles 15(1) and 28 of the
Code of Professional Conduct for Counsel. Article
15(1) states: ‘Counsel shall provide the client with all
explanations reasonably needed to make informed
decisions regarding his or her representation’. Article
28 provides: ‘Counsel shall not address directly the
client of another counsel except through or with the
permission of that counsel’. The Chamber noted that
the VWU submitted recommendations, inter alia,
that parties wishing to contact victims must respect
recognised good practices in order to minimise the risk
to victims.
At the outset of its analysis, Trial Chamber II found
that pursuant to Article 1 of the Code of Professional
Conduct for Counsel, it applies to legal representatives
of victims. With respect to Article 28 of the Code, it
noted that it has held on numerous occasions that
contact with victims must be made through their
counsel in order that the latter fully exercise their
mandate to represent the victim’s interests. 2113 The
Chamber further agreed with the legal representatives
of victims that their assistance and counsel is not
limited to seeking reparations for damages, but
concerns all stages of the proceedings and must be
effective.
2110 ICC-01/04-01/07-2201.
2111 ICC-01/04-01/07-2251.
2112 ICC-01/04-01/07-2245.
2113 ICC-01/04-01/07-1731; ICC-01/04-01/07-T-104-Red-FRA,
p 33-34; ICC-01/04-01/07-T-138-Red-FRA, p 8-9; ICC-
01/04-01/07-T-141-Red-FRA, p 5-6 and 12-13.
The Chamber found that the Code of Professional
Conduct for Counsel must be read in light of the
Rome Statute and Rules. Victim participation must
not be prejudicial to the accused, and as such legal
representatives of victims must not act in any way
prejudicial to the establishment of the truth and the
right to a fair trial. Specifically, victim participation must
not harm the Defence’s right to silence or to conduct
investigations with equality of arms. In this regard it
highlighted Article 68(3) of the Statute, Rules 89-93
of the Rules of Procedure and Evidence, and its prior
Decision on the modalities of victim participation. 2114
The Chamber called attention to its prior decisions
on parties contacting witnesses not participating in
the Court’s Witness Protection Programme, 2115 the
disclosure obligations imposed on the Defence, 2116
(the application of which should not be prejudiced
by this decision), and to related decisions issued by
Trial Chamber I in the Lubanga case. 2117 It found that
imposing disclosure obligations on the Defence for
related documents could harm its ability to conduct
investigations and prepare its defence.
The Trial Chamber held that the party wishing to contact
the victim must first notify the legal representative
of victims, who must inform his/her client without
delay. The legal representative must provide the victim
with the necessary advice and assistance, pursuant to
Article 15(1) of the Code of Professional Conduct for
Counsel, in order to enable him or her to make decisions
concerning potential questioning by the Defence or
appearing before the Court as an exonerating witness.
The legal representative must, pursuant to the Code,
not adopt a prejudicial attitude in the discharge of his/
her duties. The Chamber held that victims shall decide
whether their legal representatives shall be present
during questioning by the parties. Upon being informed
by his/her client that the latter intends to consent to
be questioned by a party, the legal representative must
communicate his/her client’s decision without delay to
the party.
2114 ICC-01/04-01/07-1788.
2115 ICC-01/04-01/07-1134.
2116 ICC-01/04-01/07-2388.
2117 ICC-01/04-01/06-1372, para 14 (holding that ‘[a] party
or a participant wishing to interview a witness whom
the other party or a participant intends to call, shall first
inform the party or the participant of the proposal, setting
out the suggested time and location of the interview. If
the witness consents, the party or participant shall make
such contact through the Victims and Witnesses Unit,
which shall make the necessary arrangements for the
interview. A representative of the Victims and Witnesses
Unit shall be present during the interview and the party
or participant intending to call the witness may also
attend the interview, unless the Chamber has, on an
application, ruled otherwise’.); ICC-01/04-01/06-1379.
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