Defence Lawyers Cry Foul Over Pay System

Wednesday, 9 November, 2005

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Karen Meirik

Defence lawyers working at the Hague tribunal have spoken out against what they see as an unfair system of payment which appears to favour the prosecutor's office.

The Association for Defence Counsel, ADC, at a press briefing on April 29, alleged that budget allocated to them by the tribunal is too low - and that the quality of the defence may suffer as a result.

Defence counsel are not asking for equal resources to that currently enjoyed by the prosecution, argued ADC president Stephane Bourgon. "We just want enough [working hours] to do our job and represent our clients effectively. This is more than we are getting now.

"The prosecution has the burden of proof, they have to build the case from scratch. From the day a trial begins the prosecution has obtained enough material to convince a judge to confirm the indictment - so at that moment they are way ahead of defence counsel."

According to the ADC, from that day on, the need for resources is the same for both sides.

However, the ADC's demand for more paid working hours is at loggerheads with the new system the tribunal uses to pay counsel. This so-called Trial Aid Policy was introduced as a response to questions raised at the 57th United Nations Plenary in New York, where several allegations of fee-splitting - at least one of which was confirmed at the tribunal - were raised. The resulting criticism led to a reform of the payment system.

David Tolbert, the tribunal's deputy registrar, said, "On the recommendation of a UN-appointed expert group, which was also created to address the fee-splitting issue, we [introduced] a lump sum system for the tribunal."

Under this new system, the tribunal's financial contribution to the defence lawyers is calculated as one lump sum, based on the expected length of the trial. The fixed monthly allocation is just under 30,000 US dollars, to which a supplement for legal assistance and translation costs is added later. Based on the level of the trial's complexity, this can range from more than 4,000 dollars to as much as around 15,000 dollars a month.

The defence team gets 10 per cent of this sum at the start of the trial, to allow them to set themselves up in an office in The Hague. Once the trial is underway, 65 per cent of the money is paid in monthly instalments. The remaining 25 per cent is then handed over at the end of the trial.

"There were intensive discussions with the ADC about the new trial legal aid policy and my impression is that it has been working fairly well," Tolbert said.

Bourgon agrees - up to a point. "The lump sum system has the potential to yield very good results," he said. "It allows the tribunal to control its budget and defence counsel to know what money they will get and when. In the past there was less control."

"What a defence team receives today is less than what they were provided with in 1993," Bourgon concludes. "In that respect the tribunal succeeded in bringing defence costs down and saving money."

This might have escaped people's attention, he said, as the number of cases dealt with by the tribunal has increased, along with the corresponding defence costs.

The practise of holding over 25 per cent of money until completion of the trial was - along with the rest of the lump sum system - initially accepted by the defence counsel. However, following general discussions with the tribunal's Office of Legal Assistance and Detention, OLAD, the ADC has become increasingly concerned about it.

Bourgon said, "On April 16, OLAD, came back on the issue on how we will be paid. We had agreed to the system whereby they withheld 25 per cent, which was kept to ensure that we work quickly, finish the job and not run away. But now it seems [that this deposit] could be used as a penalty."

In this letter the chief of OLAD said the registry "reserves the right to suspend disbursement of all or parts of the remaining 25 per cent" if there's the suspicion that work accounted for was not performed, the defence team was not competent, other "unauthorised individuals" received legal aid funds, or if any other ethical or procedural irregularities occurred.

The existence of the letter - seen by IWPR - could not be confirmed by the tribunal as IWPR went to press. But in an interview in March, Tolbert said, "We have a residual amount of 25 per cent that is held back, which creates some flexibility in the system."

But Bourgon told IWPR, "It's our understanding they no longer guarantee that it's ours. It will depend on the quality of invoices, on if there's a suspicion that we have been wasting our time. What is it that you have to show to be paid normal money like every normal employee?"

Under the old system, lawyers were paid as much as 110 dollars per hour, depending on experience. Expenses, such as travelling, translation costs and further assistance, could be billed later.

Tolbert told IWPR that the undeniable saving in the registry's administration costs was not the only reason why the lump sum system is favoured.

"A billing [system] is much more easily abused than a lump sum one," he said. "We now calculate what the costs should be, based on the complexity of the case."

It was easier to manipulate invoices if billing was done on a hour to hour basis, he said, adding, "I could give you some outrageous examples - we were once presented with a bill for 40 hours someone spent reading a manual."

An earlier revision of the billing system was implemented in 2001, when pre-trials and appeals cases were divided into three levels of complexity. Proceedings deemed to be merely "difficult" were categorised as Level One, "very difficult" were listed as Level Two, while the "extremely difficult/leadership" cases were referred to as Level Three.

The registry calculated that a Level One case should take four months of preparation in its pre-trial phase, a Level Two six months and a Level Three eight months.

But Bourgon disputes this, arguing that the highest level proceedings take far longer than eight months to prepare. He told IWPR that the Level Three case he is currently engaged in - co-defending former Bosnian Army commander Enver Hadzihasanovic - involved more than half a million pages of evidence that had to be studied in the pre-trial period. "I can honestly say I worked full-time for at least 18 months on the case during [that time]," he said. "My colleague [Edina Residovic] spent at least 22 months."

Additionally, Bourgon points out that not only lawyers are facing a discrepancy in payment. Legal assistants working for the defence are paid under 3,000 dollars a month from the lump sum budget. However, a similarly-qualified worker in the prosecution department will receive a UN-scale salary of around 4,000 dollars a month.

While debates about equality of resources may seem trivial, both the tribunal and the ADC agree that the rights of the accused must be guaranteed if the Hague body's reputation for holding fair trials is to be upheld.

"Without a proper defence we're not going to have fair trials," said Tolbert. "[So] we want to have the best supportive defence counsel there is, in the sense that it's critical to a fair trial.

The tribunal, he argued, already has the strict equality of arms that the ADC is calling for. "But [this] doesn't mean exactly the same resources. The prosecutors have the burden of proof. I think all lawyers understand that," he said.

The UN's 2002-3 tribunal budget was just under 262 million dollars. From this budget, just under 81 million went to the OTP. The 25 judges received 8.5 million, while the remaining 172 million went to the registry, where it was used to pay defence counsel among other things.

"The defence budget is an extremely large part [of that money] - somewhere around ten per cent of the tribunal's entire allocation," Tolbert said. "It's around 19 million dollars per year."

Calculated like this, the prosecution receives three times the defence's budget, but Bourgon alleges that this method of comparison is not accurate. Whereas 40 per cent of the defence fee goes to cover office costs, he argued, all extra prosecution costs are paid for by the registry. He has now asked for both budgets to be compared without taking such overheads into account.

The ADC also has issues with the lump sum system if a trial overruns - in such an eventuality, the defence team will only receive office costs - just under 12,000 dollars a month.

However, the signs for future cooperation are promising, as some of the non-financial issues have been solved recently. As well as the advent of the weekly press briefings, the ADC has also been given full access to the judicial database - a system that contains all the documents that have been filed in the tribunal's history. Tolbert announced that in May this system will be available on all computers in defence counsel rooms, and in the future it will also be possible for them to log in from home.

Tolbert is glad to have the ADC as a representative organ for the defence lawyers. "We're definitely much better off with the ADC," he said. "What I'm looking for is a professional association, where disciplinary action is taken against those that abuse the system, [where] standards are developed, training is involved.

"I meet with them once a month - they have now a head of their office and they participate in the rules committee. I'd like to give [them] more resources, obviously, but we have limitations."

For the ADC cooperation is an inescapable fact of life. "We want to get closer to the registry, and most specifically OLAD," Bourgon said. "We depend on them for everything we do. I cannot decide which expert witness I want, without asking them. I cannot travel to meet a witness, without asking permission. We have no choice but to be close to them."

Bourgon told IWPR that the ADC's priority was not financial, but rather concentrated on educating people as to the work of the defence counsel. "Money does have a lot to do with it - but it's not the only issue," he said.

"Persons occupying key-positions do not have, in our view, an understanding of what, how and why defence counsel do what we do" said Bourgon, adding that while he appreciated what he called a significant improvement in the tribunal's attitude, he remained unsatisfied.

Karen Meirik, an IWPR reporter in The Hague for the last twelve months, is leaving to work as a correspondent in China for Dutch and Belgian media.