Possible designation of the OPCD
Where the Prosecutor considers that an investigation offers a unique opportunity to obtain information or take a statement:
- the Chamber may designate the OPCD to protect the rights of the Defence during the taking of testimony, when there has not yet been an arrest or appearance or when the person who has been arrested or appeared in response to a summons has not yet appointed Counsel;
- the Chamber may designate the OPCD to assist in the taking of statements.(Regulation 77(4) of the Regulations of the Court, article 56(2) of the Statute and rule 47(2) of the Rules of Procedure and Evidence)
On specific issues, the relevant Chamber may designate the OPCD as ad hoc Counsel. The question of the participation of victims in the proceedings in the context of a situation may, as has already been the case, lead to the designation of the OPCD to make observations (Regulation 77(5) of the Regulations of the Court).
The Chamber may also appoint members of the OPCD to act as Counsel in the circumstances specified in the Statute and the Rules of Procedure and Evidence or where the interests of justice so require (Regulation 76(2) of the Regulations of the Court)
If a person requires urgent legal assistance and has not yet secured legal assistance, or where his or her counsel is unavailable, the Registrar may appoint the OPCD as duty Counsel, taking into account the wishes of the person (Regulation 73(2) of the Regulations of the Court).
There has already been an instance where the Principal Counsel acting on behalf of the OPCD is chosen by a suspect, from the duty Counsel roster presented by the Registrar, to represent him at his first appearance before the Pre-Trial Chamber.
Assistance provided by the OPCD
The OPCD provides support and assistance to Counsel for the defence and persons entitled to legal assistance:
- by carrying out research and providing legal advice;
- by appearing before the Chambers in respect of specific issues.
(Regulation 77(5) of the Regulations of the Court)
The OPCD carries out research and provides legal advice at the request of defence Counsel and appointed ad hoc Counsel. The request is submitted on a form made available to them.
Other tasks
At the request of the Registrar, the OPCD may also act as mediator in the event of a dispute between a person entitled to legal assistance and his or her Counsel (Regulation 119 of the Regulations of the Registry).
Outreach activities: The OPCD participates in information conferences and training courses at the seat of the Court and elsewhere. The OPCD also participates in working groups with other units or sections of the Court tasked with discussing the rights of the Defence or the right to a fair trial.
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The OPCD represents and protects the rights of the Defence during the preliminary stages of an investigation. It promotes, examines and raises awareness on defence-related issues, participates in working groups, attends training courses, seminars or conferences at the seat of the Court and elsewhere, contributes to “equality of arms” for the Defence at all stages of an investigation or trial, and advocates for the respect of the presumption of innocence and the principle of a fair trial.
A trial can be fair only if the rights of the Defence are respected, the presumption of innocence is a reality, and the conduct of a fair trial is recognised as an inviolable principle.
These concerns are at the core of the OPCD’s work and dovetail with the objectives of the Court’s strategic plan, which aims to make the Court an innovative, effective and respected institution.
“A fair trial is the only means to do justice. If no fair trial can be held, the object of the judicial process is frustrated and the process must be stopped.” (ICC Appeals Chamber, Judgment, 14 December 2006, para. 37).
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The independence of the OPCD is not only stipulated in the relevant instruments (Regulation 77(2) of the Regulations of the Court) but is inherent in its everyday activities.
Its members work independently and are governed, in the exercise of their duties, especially as regards respect for confidentiality, by the Code of Professional Conduct for Counsel (ICC-ASP/4/Res.1).
For issues other than representation and legal advice, the members of the OPCD are bound by the provisions applicable to all staff members of the Court (regulation 144 of the Regulations of the Registry, “Independence of Members of the Office”).
The Court, as a whole, and the Registrar, in particular, respect this independence and refrain from interfering in the OPCD’s activities and its mandate to provide support and assistance.
Pursuant to Regulation 143 of the regulation of the Registry, the members of the OPCD are appointed in accordance with the rules and regulations governing the recruitment of the staff of the Court. A representative of the legal profession sits on the selection panel.
The annual report on the activities of the OPCD submitted to the Registrar does not include any confidential information received by the OPCD in carrying out its mandate.
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The role of the OPCD is more akin to providing institutional support when it is approached (for instance for legal advice) by assigned Counsel or lead Counsel, or when it receives a request from a person entitled to legal assistance.
As a permanent component of the Court, the OPCD seeks to contribute to “equality of arms” (as an ingredient of a fair trial) and to broaden the institutional knowledge and skills of the Defence. In practice, this takes the form of studies on procedural and substantive aspects of international criminal law and drafting of legal opinions that can be made available to the Defence at short notice.
The OPCD seeks to constitute an institutional memory for the Defence before the Court and to establish a resource centre and a legal and case law database.
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The OPCD focuses on making available, as far as possible, all legal tools and advice so that defence teams can fully achieve their aims before the Court.
In practical terms, this means that as soon as Counsel for the defence is assigned, he or she may, for example, have to act immediately on a decision of the Chamber, or to respond within deadlines, which are often short, to applications from the Prosecution or applications from victims seeking to participate in the proceedings. In such circumstances, the OPCD can provide Counsel with legal and technical support and advice by identifying the precise articles, rules or regulations applicable, by providing to Counsel any useful case law and developing standard routine applications, thereby helping to expedite proceedings before the Court.
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The OPCD provides support and assistance to Counsel for the defence (or to persons entitled to legal assistance who have opted to defend themselves or to understand their rights) at their request, by means of a form made available to them and on which they can detail the nature of the research or legal opinions sought, and the date on which they wish to receive the results.
Counsel, acting on their client’s instructions, develops a defence strategy and decides on the content of the arguments and submissions. It is Counsel’s sole responsibility to decide whether or not to use the studies or draft applications prepared by the OPCD. The OPCD never interferes with the strategy adopted by Counsel.
The OPCD is neither involved in the assignment of Counsel nor responsible for providing them with administrative assistance.
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Persons summoned to appear or prosecuted before the Court may choose a duty Counsel from a roster established for the purpose, in order to protect their rights and be assisted during their first appearance before the Chamber pending assignment of their lead Counsel.
The OPCD, which is consulted on a case-by-case basis in order to avoid any conflict of interest, may agree to be included on the roster of duty council. If it is chosen by a suspect, the OPCD will carry out this special provisional assignment, without prejudice to the future defence team handling the substance of the case and further proceedings.
The duty Counsel will then hand over the file to his or her successor.
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The OPCD may be requested to appear before a Chamber in order to enlighten the Chamber, the parties and/or participants on specific legal or technical matters.
However, the OPCD may not make applications or submissions directly in the courtroom unless the Court so orders or an application to that effect has been filed by Counsel with his or her client’s approval.
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The OPCD and its members are bound by the Code of Professional Conduct for Counsel.
The OPCD respects the confidentiality of privileged information disclosed to it in the performance of its duties. It is bound to professional secrecy. The OPCD must avoid all circumstances that might result in a conflict of interest.
To avoid any conflict of interest with the various defence teams, the OPCD focuses its research and assistance on legal and technical matters that may be of interest to all teams. It therefore refrains from taking a position on any factual allegations made by the Prosecution, the Defence teams or the Legal Representatives of Victims.
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