No.: ICC-02/04-01/ Date: 1 February 2007

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1 No.: ICC-02/04-01/ Date: 1 February 2007 Decision on legal representation, appointment of counsel for the defence, protective measures and time-limit for submission of observations on applications for participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06 Headline Uganda, The Prosecutor vs. Joseph Kony, Vincent Otti, Okot Odhiambo, Raska Lukwiya, Dominic Ongwen Single Judge (Pre-Trial Chamber II) recognises victims right to participate in current proceedings with or without legal representatives; appoints Defence counsel; and allows redaction of applicants' identifying information. Brief Summary On 1 February 2007, the Single Judge (Pre-Trial Chamber II) recognised the right of victims to participate in the current proceedings before the Court with or without legal representatives; appointed counsel for the Defence; and granted the request for redaction of identifying information of applicants. In the decision, the Single Judge examined three issues related to application for participation, namely: (i) whether there is a need to appoint a legal representative (individual or common) at this stage of the proceedings; (ii) whether there is a need to appoint counsel for the Defence at this stage; and (iii) whether there is a need to adopt any protective measures and, if so, of which nature. The Single Judge found that, during the time between the filing of an application and the Chamber s assessment of its merits, the applicant has the right to participate in the proceedings with or without the assistance of a legal representative. Under article 68(3) 3 of the Statute, the Chamber has discretion to grant such participation. However, those victims assisted by legal representatives enjoy enhanced procedural rights while those not so assisted enjoy more limited rights. The role of the legal representative is optional and the victim does not have an absolute right to the assistance of a legal representative at this stage of the proceedings. 1

2 The Single Judge found it appropriate to appoint a counsel for the Defence at the current stage of the proceedings. Moreover, the Court has discretion to appoint counsel for the Defence where the interests of justice so require. The present situation where none of the arrest warrants issued has been executed requires the appointment of counsel in order to preserve the overall fairness of the proceedings. Moreover, the appointment of such counsel is appropriate as some individuals have applied for victim status and sought participation in the preliminary examination, pre-trial and appeals stages. The functions and powers of the counsel for Defence at this stage are limited to those which may be necessary and appropriate within the context of victim application-related proceedings, including the right to receive copies of the applications and submit observations. The Single Judge found that redactions of the applications were appropriate protective measures at the present stage under rule 89(1) of the Rules of Procedure and Evidence and article 68(1) 4. The applicants may face security risks if the fact that they have applied to participate becomes known. In Uganda, the continued threats posed by the Lord s Resistance Army and the possible resurgence of violence make it necessary to prevent the identity of the applicants from being revealed. The adoption of more stringent and targeted security measures such as possible relocation of applicants are not justified due to the limited scope of the present phase in the proceedings. The Single Judge found that the principle of proportionality required the nature and purpose of the proceedings to be taken into account when considering protective measures. In the current situation, where no actual decision has been made as to victim participation, there was no impact on the position of the Defence and preliminary assessments of the merits of the applications may lead to some being rejected. Therefore, the redactions of the applications were appropriate, financially practical, and did not entail any unnecessary restriction on the rights of the Defence. Full Summary On 1 February 2007, the Single Judge (Pre-Trial Chamber II) recognised the right of victims to participate in the current proceedings before the Court with or without legal representatives; appointed counsel for the Defence; and granted the request for redaction of identifying information of applicants. The Single Judge examined three issues related to application for participation, namely: (i) whether there is a need to appoint a legal representative (individual or common) at this stage of the proceedings; (ii) 4 Article 68(1) of the ICC Statute 2

3 whether there is a need to appoint counsel for the Defence at this stage; and (iii) whether there is a need to adopt any protective measures and, in the affirmative, of which nature (para. 1). Whether there is a need to appoint a legal representative (individual or common) at this stage of the proceedings The Single Judge found that the Court's statutory framework supported the view that victims whose applications have been granted may participate in proceedings with or without the assistance of a legal representative. Two elements are relevant to legal representation addressed in article 68(3) 7 of the Statute. First, the victim s right to present his or her views and concerns is independent of the issue of legal representation. Second, the role of the legal representative is not mandatory but conditioned upon a determination of appropriateness by the Court (para. 3). The Single Judge held that legal representation is not required for victims to participate in the Court s proceedings. Rule 90(1) 8 of the Rules of Procedure and Evidence implies a right of a victim to choose his or her own legal representative but does not make it compulsory for the victim to make such a choice. Accordingly, a victim s right to choose a legal representative includes the right not to choose one and exercise his or her right to participate in proceedings without legal representation (paras. 4-5). Moreover, the optional nature of the legal representative is apparent in light of rule 91 which addresses the methods of participation by legal representatives of victims. Pursuant to Rule 91, participation in hearings and the questioning of a party or witness shall be performed only by a legal representative. Therefore, whilst victims as such are entitled to participate in the proceedings before the Court, "enhanced" rights of participation are vested exclusively in victims acting via legal representatives (para. 7). The Single Judge reached two conclusions from the above analysis. First, a victim's participation in the proceedings is not conditional upon him or her being assisted by a legal representative, even after his or her application has been granted. Second, there are at least two categories of victims entitled to some forms of participation in the Court's proceedings, namely (a) those victims assisted by a legal representative and enjoying "enhanced" procedural rights under rule 91; and (b) those not assisted by a legal representative enjoying more limited rights of participation, in any event entitled to present their "views and concerns" possibly in the form of "opening and closing statements". Even with such an entitlement, victims do not have an absolute and unconditional right to the assistance of a legal representative in respect of the phase preceding the Chamber s decision on the merits of the application (paras ). 7 article 68(3). 8 rule 90 of the Rules of Procedure and Evidence 3

4 Role of the Office of Public Counsel of Victims The Single Judge concluded that, based on the current system of victim participation in the proceedings, it is unnecessary to determine at this stage whether a legal representative should be appointed in the person of a staff member of the OPCV. The mandate vested in the OPCV by the Regulations of the Court also encompasses forms and methods of assistance to victims which fall short of legal representation. Under the current circumstances whereby none of the applicants may rely on a legal representative, it is appropriate for the victims to benefit from the support and assistance which may be offered by the OPCV (para. 13). Whether there is a need to appoint counsel for the Defence at this stage The Single Judge found that under rule 89(1), both the Prosecution and Defence are entitled to receive copies of the application and to submit observations on them. Moreover, pursuant to regulation 76(1), the Chamber has discretion to appoint counsel where the interests of justice so require. A situation where the warrants of arrest have been issued but not yet executed requires the appointment of a counsel for the Defence. Such an appointment is required for the purpose of allowing the proper development of the procedure enshrined in rule 89(1) and preserving the overall fairness of the proceedings. It is appropriate to appoint one counsel for the Defence entrusted with the responsibility for all aspects related to the applications. However, the functions and powers of that counsel will be restricted to those which may be necessary and appropriate within the context of the applications, which include the right to receive copies of the applications and to submit observations (paras ). Whether there is a need to adopt any protective measures and, in the affirmative, of which nature The Single Judge examined the appropriateness of the protective measures under article 68(1) (para. 17). Several factors were considered in determining that the applicants might face security risks, thus justifying their request for and the granting of protective measures, including: (i) the consideration that in the Ugandan situation the Lord s Resistance Army may be inclined to launch retaliatory strikes; and (ii) the fact that the security situation in Northern Uganda continues to be unstable (para. 19). The only feasible and appropriate measures at this stage are the redactions of the applications. Redactions are appropriate protective measures for preventing the applicants from being identified for the following reasons: (i) the adoption of other protective measures would exceed the scope of the stage of the proceedings; (ii) the adoption of other means are unjustified due to the fact that preliminary consideration of applications may lead to some being rejected; and (iii) the adoption of other measures contains practical and financial obstacles (para. 20). 4

5 The Single Judge found that redactions were necessary to prevent identification of the applicants. To that end, the redactions should cover information such as: i. name; ii. name of parents; iii. place and date of birth; iv. tribe or ethnic group; v. current address and place of origin; vi. specific features of the injury, loss or harm allegedly suffered; and vii. name and contact details of the intermediary assisting the victim in filing the application (para. 21). Other information that may lead to the applicant s identity and any detail of the alleged incident that may lead to the identification of the victim may also be redacted (para. 22). The Single Judge considered that the scope of redaction cannot exceed what is strictly necessary in light of the Prosecution and Defence having the right to submit observations on victims applications. The principle of proportionality requires protective measures to restrict the rights of the suspect or accused only as far as necessary. In the current situation where no actual decision has been made as to victim participation, there is no impact on the position of the Defence. Therefore, the redaction of the aforementioned information does not unnecessarily restrict the rights of the Defence or prejudice his power and duty to review the appropriateness of the protective measures once the applicant victim has been admitted. All applications must be transmitted both to the Prosecution and Defence in redacted form due to the serious security concerns arising from the situation which require a restrictive approach and the consideration of fairness which requires that both parties be placed on an equal footing (paras ). 5