Victims’ lawyer in Kenya case challenges ICC registrar’s decisions

It would appear the group most affected by the transition to the trial phase of the Kenya cases at the International Criminal Court (ICC) are the victims of the violence that erupted in the country four years ago.

The lawyers who have represented them for the past 10 months are not guaranteed to continue serving them because they were only hired for the pre-trial phase. The victims’ lawyers, or legal representatives’ for victims as they are officially known, are court-appointed. Their remuneration, staff, and other expenses are paid by the ICC’s legal aid scheme.

In an April 23 decision, the court’s Appeals Chamber said the victims’ lawyers would have to seek in advance the authorization of ICC Registrar Silvana Arbia for any activities they wished to conduct so as to determine how much legal aid was required. The Chamber also stated that the lawyers should not be paid at the same levels as during the pre-trial phase because the work had reduced. Now one of the lawyers, Sureta Chana, is questioning the fairness of the Registrar’s decisions and is asking the judges of Trial Chamber V to adjudicate in the matter.

In an urgent application filed to the court on June 1, Chana contested how much information is appropriate for her to give so the ICC Registrar can authorize payments from the legal aid scheme. She also contested the Registrar’s decision not to pay her staff since March and limit her interaction with her clients by authorizing only a fraction of a budget she had proposed for a February trip she made to Kenya.

Chana is a Kenyan-born lawyer who lives and works in London and has to travel from Britain to Kenya whenever she needs to meet with her clients. The same applies for her case manager, Mariana Pena, who is based at The Hague, and a legal assistant, who also lives and works in London.

Chana stated in her application that when she traveled to Kenya in February she intended to meet all her then 327 clients to fully brief them in person on the court’s decision to confirm the charges against some of the suspects and listen to their views on the decision. (Earlier this week Chana told Trial Chamber V that one of the victims she represents had died recently.) She said the meetings were to take place in four different locations in the country but the registry declined to give her the 13,020 euros she had applied for, instead authorizing expenses of only up to 2,000 euros. Chana said that as a result she was only able to meet with 32 of her clients.

Chana also said the Registrar erred when using her discretion to determine that Chana’s workload had reduced since the January decision to confirm charges and only would receive remuneration and her staff needed to begin “check-out” procedures. Chana said she had proposed that her case manager and field workers continue working on a full-time basis under the normal time-sheet regime of the registry because she was expected to represent the victims until told otherwise. Chana also stated she proposed her other staff only work for limited hours.

Deputy Registrar Didier Preira responded on behalf of Arbia that the registry did not see the need to pay for any full time staff while the status of the victims’ lawyers remained transitional. However, in the June 7 submission Preira said that the registry understood Chana may need the assistance of a case manager, legal assistant, or other person and would authorize payment to them for work done so long as sufficient information was given about what they had contributed.

Preira further noted that Chana was eligible to a maximum of 8,222 euros a month in legal fees plus a maximum of 30 percent professional compensation. He stated that the registry’s request for information on the activities of the victims’ lawyer in order to determine the legal aid to be paid did not breach any confidentiality rules that the lawyer was required to observe.

During the status conferences held earlier this week, Presiding Judge Kuniko Ozaki of Trial Chamber V said they would issue a ruling on Chana’s application later. Ozaki did not say when that will be.

In the Kenya cases, the court appointed one lawyer for all victims in each case in August last year. Their appointment was restricted to the pre-trial phase and related matters. No one has been appointed to represent the victims since charges against four of the six prominent Kenyan suspects were confirmed in January this year – even with the four accused filing two applications before the pre-trial chamber and the appeals chamber that took some time before being resolved.

Victims of crimes that fall within the jurisdiction of the ICC are entitled to representation. This representation is separate from that of the prosecutor’s case, which may involve victims who are witnesses. If a case goes to trial at the ICC and at the end of it the accused are convicted, then the victims represented during the case may apply for the court to order reparations. Victims’ representation is a feature unique to the ICC. None of the ongoing ad-hoc international crimes courts have such a provision.

 

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