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 Re: إعلانات وقرارات The Pre-trial Chamber-1 (Re: Asma Abdel Halim)
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قرار إعفاء السيد هادى شلوف
Original: English No.: ICC-02/05
Date: 15 March 2007
PRE-TRIAL CHAMBER I
Before: Judge Akua Kuenyehia, Presiding Judge
Judge Claude Jorda
Judge Sylvia Steiner
Registrar: Mr Bruno Cathala
SITUATION IN DARFUR, SUDAN
Public Document
Decision on the Request for Review of the Registry's decision of 13 February 2007
The Office of the Prosecutor Ad hoc Counsel for the Defence
Mr Luis Moreno-Ocampo, Prosecutor Mr Hadi Shalluf
Ms Fatou Bensouda, Deputy Prosecutor
Mr Andrew Cayley
No. ICC-02/05 1/8 15 March 2007
PRE-TRIAL CHAMBER I ("the Chamber") of the International Criminal Court ("the
Court");
NOTING the "Decision Inviting Observations in Application of Rule 103 of the Rules
of Procedure and Evidence", issued by the Chamber on 24 July 2006,1 whereby the
Chamber ordered the Registrar to appoint an ad hoc Counsel for the sole purpose of
representing and protecting the general interests of the Defence in the Situation in
Darfur, Sudan during the proceedings pursuant to rule 103 of the Rules of Procedure
and Evidence ("the Rules");
NOTING the "Decision of the Registrar Appointing Mr Hadi Shalluf as ad hoc
Counsel for the Defence", filed by the Registrar on 25 August 2006;2
NOTING the "Application requesting the presence and participation of the ad hoc
Counsel for the Defence during the proceedings that the Office of the Prosecutor will
undertake in Sudan", filed by the ad hoc Counsel for the Defence ("the ad hoc
Counsel") on 18 December 2006;3
NOTING the letter sent by the Head of the Division of Victims and Counsel to the ad
hoc Counsel, dated 24 January 2007, asking him to provide the legal basis for his
request for payment of fees for the period of 1 to 31 December 2006;4
NOTING the response of the ad hoc Counsel to the above request, dated 27 January
2007, in which he provided the legal basis of his request for payment of his fees
arguing, inter alia, that since he had not received any instructions from the Chamber
his mandate encompasses all duties and obligations of defence counsels in general,
under articles 5 and 6 of the Code of Professional Conduct;5
NOTING the "Decision on the Ad hoc Counsel for the Defence Request of 18
December 2006", issued on 2 February 2007, in which the Chamber, inter alia, (i)
rejects the request to permit the ad hoc Counsel to participate in, and be informed of,
any proceedings undertaken by the Prosecution relating to the Situation in Darfur,
Sudan; (ii) specifies that the mandate of the ad hoc Counsel is strictly restricted to
proceedings pursuant to rule 103 of the Rules; (iii) determines that the ad hoc
Counsel's mandate does not extend automatically to other proceedings at the pretrial
stage set out in the Rome Statute and the Rules; and (iv) finds that the ad hoc
Counsel's request falls outside the parameters of his legally assigned
responsibilities;6
NOTING the letter sent by the Head of the Division of Victims and Counsel to the ad
hoc Counsel, dated 13 February 2007, in which, after noting the above decision, the
Head of the Division of Victims and Counsel informed him that no payments would be made for the periods of 1 to 31 December 2006 and 1 to 31 January 2007, on the
ground that the ad hoc Counsel had been acting beyond the scope of his mandate;7
NOTING the "Decision on the Ad hoc Counsel for the Defence's Request for leave to
Appeal the Decision of 02 February 2007", issued on 21 February 2007, in which the
Chamber states that "the Ad hoc Counsel's mandate is restricted to particular
proceedings under rule 103 of the Rules (...)"; and that therefore the Ad hoc
Counsel's reliance on articles 5 and 6 of the Code of Professional Conduct "suggests
that the Ad hoc Counsel attempts to extrapolate the specificity, the limits and the
scope of his mandate";8
NOTING the "Request for Review of the Registry's decision of 13 February 2007",9
("the Request for Review"), filed on 27 February 2007, in which the ad hoc Counsel
requests the Chamber inter alia to (i) declare the decision of the Head of the Division
of Victims and Counsel unlawful, flawed, void and unfair; (ii) declare that the work
done by the ad hoc Counsel fell within the scope of his mandate; and (iii) - order the
Registrar to pay the ad hoc Counsel's fees for all the work done in December 2006,
January and February 2007;
NOTING the "Réponse du Greffier au "Recours à l'encontre de la décision du Greffe
du 13 février 2007" déposé le 27 février 2007 par Me Hadi Shalluf' (Response of the
Registrar to the Request for review of the Registry Decision of 13 February 2007, filed on 27 February 2007 by Mr. Hadi Shalluf) ("the Registrar's Response"), filed on 6 March 2007, in which the Registrar requests the Chamber to rule the Request for Review inadmissible for non-compliance with regulation 135(1) of the Regulations of
the Registry, or, in the alternative, that it be dismissed on its merits;10
NOTING the "Application requesting the intervention and opinion of the Prosecutor in the proceedings to be undertaken by the ad hoc Counsel for the Defence "Request for Review of the Registry Decision of 13 February 2007", filed by the ad hoc Counsel on 12 March 2007;11
NOTING rule 103 of the Rules and regulation 135 of the Regulations of the Registry;
CONSIDERING that, effectively, the procedure provided for in regulation 135(1) of the Regulations of the Registry has not been followed; that the ad hoc Counsel should have sought a decision from the Registrar on the dispute relating to the payment of his fees; and that, therefore, the current Request for Review of the decision of the Head of the Division of Victims and Counsel should in principle be deemed inadmissible;
CONSIDERING, nevertheless, that, in his response, the Registrar states that "[t]he
Registrar has delegated authority to the Head of the Division of Victims and Counsel for those matters which fall within his remit, in this instance managing the Court's legal assistance scheme, including the payment of counsel fees";12 and that "in this matter the decision of 13 February 2007 was taken under the authority delegated by the Registrar - to the Head of the Division of Victims and Counsel in this case – to rule on the daily requests for the payment of counsel fees, and the decision is therefore not flawed in any way";13
CONSIDERING, furthermore, that, in his response, the Registrar has expressly and
impliedly endorsed the decision taken by the Head of the Division of Victims and
Counsel;14 and that therefore, in the view of the Chamber, the criteria for the
admissibility of the Request for Review have been met;
CONSIDERING that the Chamber, in previous decisions,15 and as mentioned above,
has clearly defined the legal scope of the mandate of the ad hoc Counsel as being
strictly limited as follows: "to represent and protect the general interests of the
Defence in the Situation in Darfur, Sudan during particular proceedings, pursuant to
rule 103 of the Rules, namely: inviting observations on issues concerning the
protection of victims and the preservation of evidence in Darfur; and ,
accordingly, the mandate of the ad hoc Counsel for the Defence is strictly restricted to
those proceedings and does not extend automatically to other proceedings at the pretrial stage set out in the Statute and the Rules";16
CONSIDERING that the Chamber unambiguously stated that under rule 103 of the
Rules, both the Office of the Prosecutor and the ad hoc Counsel had 10 days to submit
a written response to the observations of the Amid Curiae in the Sudan situation file;17 and that the ad hoc Counsel, by not submitting his response in writing, forfeited his right to respond;
CONSIDERING, however, that the ad hoc Counsel has continued to file an inordinate number of baseless requests and motions; that he has completely disregarded the precise and clear scope of his mandate by adopting his own interpretation of the mandate;18 and that all such requests and motions have been denied by the Chamber on the ground that the ad hoc Counsel has no mandate, for instance, to challenge the admissibility of the case, or to participate in the proceedings relating to the Prosecution's investigation in the Sudan situation file; CONSIDERING that the Chamber agrees with the submission of the Registrar that the continuous filings of the ad hoc Counsel are frivolous and vexatious;19 that, in the view of the Chamber, such filings extrapolate the limits and scope of the ad hoc Counsel's specific mandate20; and, as such, can be considered an abuse of procedure; CONSIDERING, accordingly, that, given the fact that the ad hoc Counsel has been acting beyond the scope of his mandate, the Chamber is of the view that he is in no position to demand payment of fees for the vexatious and frivolous claims instituted before this Chamber for the said period;
CONSIDERING, furthermore, that the ad hoc Counsel's motion requesting the Chamber to invite the Prosecution to submit observations on the Request for Review has no legal basis;
CONSIDERING, lastly, that the Chamber is satisfied with the observations and
response filed by the participants in the proceedings under rule 103 of the Rules,
FOR THESE REASONS,
REJECTS the ad hoc Counsel's Request for Review; REJECTS the ad hoc Counsel's motion requesting that the Prosecution be invited to
submit observations on the Request for Review;
ORDERS the Registry to inform all participants that the proceedings under Rule 103 of the Rules have come to a conclusion;
ORDERS the Registry to complete all administrative arrangements in order to
release Mr Hadi Shalluf from his responsibilities as ad hoc Counsel for the Defence in the Situation in Darfur, Sudan.
Done in both English and French, the English version being authoritative.
Judge Akua Kuenyehia
Presiding Judge
Judge Sylvia Steiner Judge Claude Jorda
Dated this Thursday, 15 March 2007
At The Hague, The Netherlands
4 ICC-02/05-60-Anxl.
5 ICC-02/05-60-Anx2.
6 ICC-02/05-47.
7ICC-02/05-60-Anx 3
8ICC-02/05-52, pp. 6 and 7
9ICC-02/05-57
10ICC-02/05-60. The Registrar states that the appeal is filed against a decision taken by the Head of the
Division of Victims and Counsel, and not against a decision taken by the Registrar, under regulation
135(1) of the Regulations of the Registry.
11ICC-02/05-63.
12 Registrar's Response, para. 32.
13 Registrar's Response, para. 33.
14 Registrar's Response, paras. 18-28; para. 50.
15ICC-02/05-10, ICC-02/05-47, ICC-02/05-52.
16 ICC-02/05-47, p. 5.
17 ICC- 02/05-10, p. 5.
18 ICC-02/05-48-Corr, p.4 ;ICC-02/05-50,p.3.
19 ICC-02/05-60, paras. 18-22. See also The Prosecutor v Delalic et al, Case No. IT-96-21 Decision on
application for leave to appeal (separate trials), 14 October 1996 at
http://www.un.org/icty/celebici/appeal/decision-e/61014ST3.htm
20ICC-02/05-37, p. 5; ICC-02/05-52,p. 7
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Asma Abdel Halim
فيس بوك
تويتر
انستقرام
يوتيوب
بنتيريست