According to Rule 90(1) of the Rules of Procedure and Evidence, victims are free to choose a legal representative. However the person must have 10 years relevant experience as a criminal lawyer, judge or prosecutor, and must be fluent in either English or French in order to be placed on the Court’s list of counsel. More information on the list of counsel.
The Court may be able to provide financial assistance where victims are unable to pay for their lawyer, and may appoint a legal representative where “the interests of justice so require”.
If there are many victims in a given case, the relevant Chamber may recommend that victims choose a common legal representative. If the victims are unable to follow this recommendation, the Chamber may request that the Registrar choose one or more legal representatives, ensuring that the distinct interests of the victims are represented, and that any conflict of interest among them is avoided. Sometimes, the Judges will appoint someone themselves.
The Office of Public Council for Victims (OPCV) may also be appointed to provide general assistance to lawyers or victims and, the Court may also appoint the OPCV to ensure representation for victims or a group of victims free of charge. OPCV was established to provide support and assistance to victims and legal representatives of victims, including legal advice and representation before the Court (Regulation 81(4)). It has produced a booklet on OPCV’s mandate as well as a Manual for legal representatives of victims, which is regularly updated.
Minors under 18 are automatically considered to be indigent and eligible for legal assistance.
The Registry has developed a policy on legal aid which sets out the resources that victims’ legal representatives have at their disposal to represent their clients. In 2013, the Registry produced its single policy document on the Court’s legal aid system.
Practice so far and VRWG involvement
While victims have in principle the right to choose their counsel this has not always been the approach chosen by Chambers. In the early cases, lawyers representing victims were asked to group themselves in teams or one of those already representing victim applicants would be designated as common legal representative. In more recent cases, a different process has been implemented whereby regardless of whether victim applicants were already represented a new ‘recruitment” process is undertaken by the Registry, upon instruction by the relevant Chamber. Counsel for victims can be appointed from the list of counsel kept by the Registry (external counsel) or a counsel from the OPCV can be appointed (internal counsel).
Victims’ counsel have also deplored that on some occasions they have not been able to consult victims ahead of hearings due to limitations to the legal aid available to them.
The VRWG and its members have engaged on various occasions in relation to the need to ensure victims are able to choose their counsel. The VRWG and its members have called for counsel to benefit from a strong support structure in the field and adequate legal aid to provide quality representation to victims. In particular the group has highlighted the need to ensure counsels are in a position to regularly inform the victims their represent and to take instructions from them.
Many members of the VRWG are also active members of the CICC Team on Legal Representation which has made submissions on this issue.
A man stands trial in Bunia, the main town in the volatile northeastern district of Ituri, Democratic Republic of Congo, following the killing of two United Nations observers, 8 January 2007