publications

<<previous  |  index  |  next>>

 IV. Fair Trial Rights

Trials at the Special Court for Sierra Leone must rigorously uphold international fair trial rights to ensure that justice is done, and is seen to be done.42 The gravity of the charges against the accused underscores the importance of effective representation by defense counsel. Observing fair trial rights is also essential for building respect for the rule of law in Sierra Leone, particularly since the court can serve as a model for the struggling national justice system.43

During the trial phase, the Defence Office – an innovation for international tribunals developed by the Special Court – continues to play a crucial role in helping to protect the rights of the accused. The head of the office, the principal defender, advocates with the court administration and before the judges on issues relevant to defense representation and fair trials. The office further helps to ensure that defense counsel have adequate support to prepare and present cases.

The Registry has also demonstrated a real commitment to supporting effective representation for defendants. In addition to increasing needed resources for defense teams, as discussed below, it has supported efforts to amend the statute of the Special Court to formalize the independence of the Defence Office, which is currently under the Registry’s umbrella.44  

A. Access to Resources

Over the past year, substantial improvements have been made in support for defense, which will promote maximum assurance of fair trial rights.45 These include increases in logistical support, such as photocopiers, confidential meeting spaces, and transportation; a commitment to increasing access to international investigators; and improved language interpretation.46 In speaking with Human Rights Watch researchers, defense counsel and Defence Office staff recognized that logistical support, vital to adequate case preparation, has improved over time.47 Moreover, the registrar has indicated a commitment to respond flexibly to defense requests and to enhance support for defense where reasonable.48 

Despite these advances, funding of two areas essential to the preparation and presentation of defense cases – expert witnesses and international investigators – may prove insufficient. Defense counsel and court staff told Human Rights Watch that they believe that currently allotted amounts for the defense expert witness budget for 2005-200649 are inadequate.50 The Defence Office requested approximately three times what was ultimately allotted in the 2005-2006 budget for defense consultants and experts.51 While the notion of equality of arms between the prosecution and defense does not mean precise equality of resources, it is notable that substantial disparities exist between financial allotments for the defense and prosecution in this area.52

Defence Office staff and defense counsel have expressed similar concern about lack of funding for investigators.53 Prior to its April 2005 mission, Human Rights Watch was told that access to investigators by defense teams has improved over time, with defense teams having access to the full-time assistance of national investigators plus limited access to the assistance of an international investigator.54 Given the importance of investigation to preparation of the defense, and ongoing demands for investigation as additional information is disclosed throughout trial, the opportunity to secure some assistance of international investigators is significant. Consistent with these developments, the Defence Office requested funds for 2005-2006 to cover the services of an international investigator for up to two months for each defense team, in addition to the full-time services of national investigators. However, the 2005-2006 budget allots less than half the amount the Defense Office requested for investigators.55 

When Human Rights Watch researchers raised concerns over the limited allocations for defense expert witnesses and investigators in April 2005 in Freetown, we were told that the budget does not necessarily reflect the total amount that may be made available for all areas; some areas may extend into the next budget cycle and there may also be funds remaining from the previous budget cycle, which ended on June 30, 2005.56 In follow-up discussions, Human Rights Watch was also told that the budget is constructed based on anticipated amounts, but that there is flexibility; funds can be found to address needed areas and there is a commitment by the court to ensuring reasonable needs by the defense. Human Rights Watch was also told that the principal defender has been invited recently to meet with Registry staff to discuss needs in these two areas so that any appropriate redeployments can be considered.57 

Detailed budgeting for all potential operational needs throughout the court is a difficult task, especially when resources are scarce. However, particularly with the departure of the court’s first registrar, Robin Vincent, relying on the flexibility of the Registry to ensure adequate funding for key areas for the defense poses some concern.

Human Rights Watch welcomes that the principal defender has been invited to meet with the Registry to discuss funding for defense investigators and expert witnesses. Human Rights Watch suggests that to ensure adequate funding of these two areas, the Registry meet regularly with the Defence Office to evaluate needs and to redeploy funds as appropriate. Human Rights Watch further encourages the Registry to document necessary redeployments in order to ensure that the Management Committee has adequate information concerning reallocations and other areas that may suffer as a result, and to help ensure proper allocation of funds in the next financial period.

B. Performance of Defense Counsel

Effective assistance of counsel to the accused is an essential component of a fair trial. Given the complex nature and significance of the cases tried at the Special Court, high quality representation is all the more important.

The Special Court has set important criteria to ensure defense counsel are qualified. Under the Rules of Procedure and Evidence, a list of “highly qualified criminal defense counsel” who could serve as duty counsel or represent the accused must be maintained by the Defence Office.58 The Rules stipulate that such counsel must: 1) speak English fluently; 2) be admitted to practice law; 3) have seven years or more relevant experience; and 4) have indicated willingness and availability to undertake the responsibilities required. Under the Legal Services Contract, defense teams must further be “comprised of persons having, in the opinion of the [Defence Office] sufficient experience in the following fields of expertise: a) International Criminal Law; b) Criminal Trial, including serious offences, and c) Sierra Leone Criminal Law.”59 This requirement helps to ensure that defense teams include both Sierra Leonean and international counsel. The Defence Office has worked to ensure that these criteria are met in each defense team by seeking out qualified candidates and screening applicants.

Ensuring high quality representation in practice is a challenging task. In any domestic jurisdiction, quality of defense representation varies dramatically and may often be far from ideal. Moreover, a list of qualifications and past experience do not necessarily translate into adequate representation. The Defence Office has taken some steps to ensure adequate representation by defense counsel in practice. Duty counsel currently monitor trials, assess counsel performance, and may raise areas of concern with the principal defender who can take action to address problems. The principal defender reportedly has raised such issues with counsel in certain instances.60

Given the difficult nature of screening counsel, it is not surprising that Human Rights Watch was told nevertheless that there are deficiencies in the performance of some defense counsel at the Special Court.61 Special Court staff and defense counsel have cited problems with effective cross-examination by defense counsel, including failure to lay an adequate foundation for questioning and failure to address core issues in their client’s case. Inadequate preparation, poor quality of motions, and insufficient knowledge of international law were also identified as shortcomings.62 

The difficulty of ensuring quality representation is magnified at the Special Court due to the criteria that seek to foster teams of mixed national-international composition. Bringing Sierra Leonean and international counsel to work together in defense teams is an insightful and innovative initiative and should be considered as a model for other international justice institutions. It can ensure quality representation by combining expertise and experience with international and Sierra Leonean law and knowledge of the conflict, while also enhancing local professional capacity. But given that each counsel on every defense team does not necessarily have adequate skills in all of the designated areas, this approach creates challenges. All team members must be fully involved in case preparation and presentation to assure quality representation. At the same time, it can be difficult to regulate defense teams to ensure such involvement. Indeed, Human Rights Watch was told that representation for a number of teams is in practice apparently provided largely by either Sierra Leonean or international counsel, but not both.63

In order to promote the best possible performance by defense counsel, Human Rights Watch believes that in addition to setting experience requirements, the Defence Office should take more steps to ensure that all members of defense teams fully participate in the representation. Human Rights Watch urges the Defence Office, as part of its oversight function, to monitor the extent to which all team members are participating, to express concern where full participation is not occurring, and to urge team members who are not fully participating to assume more responsibilities in the representation. Human Rights Watch also urges the Defence Office to promptly intervene and provide targeted training in trial advocacy and international criminal law as necessary where particular conduct may be undermining vigorous representation.

In this regard, training opportunities, which remain limited, should also be increased. Although informal training and information sharing with defense counsel reportedly takes place, only one formal legal training has been held as of April 2005 for defense counsel.64 (Court staff indicated to Human Rights Watch that the Defence Office was seeking to hold a second training with an institute of trial advocacy.65) Time and funding constraints may make providing training difficult. However, given the complexity and gravity of the cases, Human Rights Watch believes it is essential that counsel participate in relevant training in trial advocacy and international criminal law where appropriate. Human Rights Watch further recommends that the Defence Office consider making such training mandatory. Where additional funding is needed to provide training, the Registry should support allocations to the Defence Office for this purpose, either by reallocating existing funds or requesting an increase in the overall budget.

Any additional counsel assignments that may take place should also result in appointments of counsel with adequate experience. Emphasis should be placed on securing lead counsel with demonstrable skills and experience in defending complex criminal cases involving international crimes. Moreover, counsel who are considered for selection should demonstrate willingness to take part in extensive trainings when appropriate and demonstrate their commitment to spending sufficient time on the preparation of cases.

C. Delays in Disclosure

Under the Special Court Rules of Procedure and Evidence, the prosecutor is required to disclose to the defense, within thirty days of the initial appearance of the accused, witness statements for all witnesses the prosecutor intends to call.66 Where the prosecutor decides to call additional witnesses, he or she must continuously disclose witness statements to the defense, but not later than sixty days before trial commences, or as otherwise ordered by a Trial Chamber judge upon a showing of good cause by the prosecution.67 Where previously known witnesses provide additional information to the prosecution prior to testifying, the prosecution is obliged to continuously disclose such information.68

Disclosure of witness statements by the prosecution to the defense is an important aspect of ensuring a fair trial. It is intimately related to an accused’s ability to know the nature and cause of the charges against him or her, to prepare his or her case, and to effectively examine witnesses.69 Human Rights Watch is concerned that disclosure of substantial additional information from witnesses by the prosecution to the defense, which in some instances contains new and incriminating evidence, has occurred shortly before witnesses are scheduled to testify.70 Special Court staff acknowledge that substantial additional disclosure has taken place following initial disclosure of witness statements, but they have rightly highlighted that such additional disclosure is unavoidable in some cases; witnesses, as they gain trust in the court, are more likely to remember additional facts or otherwise become more willing to provide certain evidence.71 However, Human Rights Watch believes that the OTP has missed opportunities to obtain and disclose additional evidence earlier. The OTP conducted a process approximately one year after initial statements were taken whereby witnesses were asked to confirm the accuracy of their statements, known as the “confirmation process.”72 Human Rights Watch was told that some witness statements had gaps, due in part to the quality of initial statement taking, which were known prior to the confirmation process. Nevertheless, during the confirmation process, witnesses were not asked about such gaps, nor were they asked to provide a full re-accounting of the events they had experienced. Instead, they were reportedly simply asked if they agreed with their witness statement. The confirmation process did not yield substantial additional evidence from witnesses, some of whom later provided such evidence shortly prior to testifying.73

Additionally, in at least two instances, the prosecution was found to have breached its disclosure obligations to the defense by failing to disclose certain evidence in its possession at any point in advance of a witness testifying.74 Human Rights Watch was told by one court official that the prosecution’s failure to comply with its disclosure obligations was attributable to inexperience.75 While the breach in these instances may have been inadvertent, rigorous adherence to disclosure obligations is essential to ensure full protection of the accused.

Where new evidence is disclosed shortly before a witness is scheduled to testify, adequate adjournments to ensure that counsel can sufficiently prepare are crucial.76 Moreover, the extent of disclosure made to the defense at the Special Court following disclosure of initial witness statements highlights the importance of adequate resources to support defense investigators who may be needed to investigate new evidence.



[42] In particular, the rights of the accused as enshrined in article 14 of the International Covenant on Civil and Political Rights (ICCPR) and contained within Article 17 of the SCSL Statute must be comprehensively and consistently upheld.

[43] For a more detailed discussion of problems with the Sierra Leone justice system, see Section VI of this report and “The Jury is Still Out,” A Human Rights Watch Briefing Paper on Sierra Leone,July 11, 2002, available online at http://hrw.org/backgrounder/africa/sl-bck0711.htm. 

[44] Human Rights Watch interview with two Special Court staff, New York, March 30, 2005.

[45] Shortcomings in several areas related to ensuring effective representation at the Special Court had previously raised concern, including: inadequate logistical support available to defense teams; lump sum payment structure for defense teams; lack of suitable candidates to serve as investigators and delays in their appointment; insufficient training of defense counsel and investigators; and inconsistent translation. “Bringing Justice: The Special Court for Sierra Leone,” A Human Rights Watch Report, pp. 21-28.

[46] Human Rights Watch interviews with three Special Court staff, Freetown, April 19 and 21, 2005 (two interviews in total); Human Rights Watch interview with Special Court staff, New York, April 8, 2005; Human Rights Watch e-mail correspondence with former court staff, October 17, 2005; Human Rights Watch interview with defense counsel, Freetown, April 12, 2005; Human Rights Watch interview with two court monitors, Freetown, April 12, 2005. As for language interpretation, the court has enhanced its capacity over time by recruiting additional interpreters and providing ongoing training for interpreters. Human Rights Watch interview with Special Court staff, April 13, 2005. See also U.C. Berkeley War Crimes Studies Center, “Special Court Interim Report,” p. 31.

[47] Human Rights Watch interviews with three Special Court staff, Freetown, April 19 and 21, 2005 (two interviews in total); Human Rights Watch interview with defense counsel, Freetown, April 12, 2005.

[48] Human Rights Watch interview with two Special Court staff, New York, March 30, 2005; Human Rights Watch e-mail correspondence with former Special Court staff, October 17, 2005.

[49] The 2005/06 budget provides two allocations regarding experts for the defense office: “consultants and experts in the management of the Legal Assistance Programme and experts to participate in disciplinary proceedings” and “expert defence” which includes “contract fees on behalf of the Defence, in areas such as Sierra Leonean history, structure, and the principles of Sierra Leone armed forces, conflict mapping, and specialized areas on International and Sierra Leonean law.”  While the experts discussed in this section relate to the second type of experts, allotments to both categories totaling U.S.$76,000 are taken into account to assure that the maximum possible amount is considered and to provide greater accuracy in comparisons between the defense and prosecution budgets. Human Rights Watch interview with Special Court staff, New York, April 8, 2005. See also Special Court for Sierra Leone, Budget 2005-2006, Version 05/06, p. 34  [online],  http://www.sc-sl.org/Documents/budget2005-2006.pdf (retrieved July 29, 2005); The Special Court for Sierra Leone Proposed Budget for 2005/2006 Fiscal Year, Defense Office, on file with Human Rights Watch, pp. 7-8.

[50] Human Rights Watch e-mail correspondence with Special Court staff, Freetown, September 30, 2005; Human Rights Watch group interview with defense counsel, Freetown, April 19, 2005.

[51] This request was made on the basis that such resources would be necessary to provide each team with funds to cover: travel expenses for one initial meeting with the defense team; consultation with the expert; research, review of transcripts, and advice by the expert; preparation of an expert report; and preparation for testimony. Funds to cover travel for experts to testify are expected to be provided by the Registry. The Special Court for Sierra Leone Proposed Budget for 2005/2006 Fiscal Year, Defense Office, pp. 6-8.

[52] The OTP budget for 2005-2006 allocates U.S.$168,000 for “consultants and experts,” more than double the allotment to defense. The budget allocation provided under the heading of “consultants and experts” indicates that it covers “short term assistance from specialists, including but not limited to the fields of forensic anthropology, financial tracking and specialist expert legal advice.” Special Court for Sierra Leone, Budget 2005-2006, Version 05/06, p. 33.

[53] Human Rights Watch interview with former Special Court staff, New York, July 27, 2005; Human Rights Watch e-mail correspondence with Special Court staff, Freetown, September 30, 2005; Human Rights Watch group interview with defense counsel, Freetown, April 19, 2005.

[54] Each accused has been entitled to a full-time Sierra Leonean investigator. Defense teams could also pay for the additional services of an international investigator out of their largely lump sum payment contracts, known as the legal services contracts. Human Rights Watch was later told though that “where the investigator is working on an expert related matter or requires an international investigator as a consultant, the defense team can make a request to the Principal Defender to obtain expert or consultant funds for this purpose, subject to the request being justified.” See Special Court for Sierra Leone, Response to the Report by Human Rights Watch: “Bringing Justice – The Special Court for Sierra Leone,” November 9, 2004, paras. 25-26, on file with Human Rights Watch. See also “Bringing Justice: The Special Court for Sierra Leone,” A Human Rights Watch Report, pp. 26-27.

[55] In line with increased access, the Defence Office requested an allocation of U.S.$293,400 to cover one full-time national investigator and up to two months of the services of an international investigator where good cause is shown for each defense team for 2005-2006. The Special Court for Sierra Leone Proposed Budget for 2005/2006 Fiscal Year, Defense Office, pp. 9-10. Despite this, the Special Court budget for 2005-2006 allocates less than half of the request, U.S.$124,200, to the Defence Office for “the services of International and National Investigators as and when required to support the defence teams.”  Special Court for Sierra Leone, Budget 2005-2006, p. 34.

[56] Human Rights Watch interview with two Special Court staff, Freetown, April 21, 2005.

[57] Human Rights Watch e-mail correspondence with former Special Court staff, October 17, 2005; Human Rights Watch interview with two Special Court staff, New York, July 15, 2005.

[58] Human Rights Watch interview with Special Court staff, Freetown, April 19, 2005; Special Court for Sierra Leone, Rules of Procedure and Evidence, Rule 45(C).

[59] Legal Services Contract, Contract Specifications, on file with Human Rights Watch.

[60] Human Rights Watch interview with two Special Court staff, Freetown, April 21, 2005.

[61] Human Rights Watch interviews with five Special Court staff, Freetown, April 12 and 21, 2005 (three interviews in total); Human Rights Watch group interview with Special Court staff, Freetown, April 18, 2005; Human Rights Watch group interview with defense counsel, Freetown, April 19, 2005; Human Rights Watch interview with defense counsel, Freetown, April 12, 2005; Human Rights Watch interview with former Special Court staff, July 27, 2005.

[62] Human Rights Watch group interview with Special Court staff, Freetown, April 18, 2005; Human Rights Watch interview with Special Court staff, Freetown, April 19, 2005; Human Rights Watch group interview with defense counsel, Freetown, April 19, 2005; Human Rights Watch separate interviews with two defense counsel, Freetown, April 12 and 15, 2005.

[63] Human Rights Watch interview with Special Court staff, Freetown, April 19, 2005; Human Rights Watch interview with former Special Court staff, New York, July 27, 2005; Human Rights Watch group interview with defense counsel, Freetown, April 19, 2005; Human Rights Watch interview with defense counsel, Freetown, April 12, 2005; Human Rights Watch interview with two court monitors, Freetown, April 12, 2005.

[64] Human Rights Watch interview with Special Court staff, New York, April 8, 2005; Human Rights Watch interview with two Special Court staff, Freetown, April 21, 2005; Human Rights Watch interview with Special Court staff, Freetown, April 19, 2005.

[65] Human Rights Watch interview with Special Court staff, New York, April 8, 2005.

[66] Special Court Rules, Rule 66(A)(i).

[67] Special Court Rules, Rule 66(A)(ii).

[68] See Rule 66, 67(D); Decision on Disclosure of Witness Statements and Cross-Examination (Norman, Kondewa) (Trial Chamber I), July 16, 2004; Ruling on the Oral Application for the Exclusion of “Additional” Statement for Witness TF 1-060 (RUF) (Trial Chamber I), July 23, 2004; Ruling on the Oral Application for the Exclusion of Statements of Witness TF1-141 Dated Respectively 9th of October, 2004, 19th and 20th of October, 2004 and 10th of January, 2005 (Sesay, Gbao) (Trial Chamber I), February 3, 2005.

[69] See ICCPR, art. 14(3); SCSL Statute, art. 17(4).

[70] Human Rights Watch interview with defense counsel, Freetown, April 16, 2005; Human Rights Watch group interview with defense counsel, Freetown, April 19, 2005; Human Rights Watch interview with defense counsel, Freetown, April 12, 2005.

[71] Human Rights Watch separate interviews with three Special Court staff, Freetown, April 18 and 20, 2005; Human Rights Watch group interview with Special Court staff, Freetown, April 18, 2005.

[72] Human Rights Watch group interview with Special Court staff, Freetown, April 18, 2005.

[73] Human Rights Watch group interview with Special Court staff, Freetown, April 18, 2005; Human Rights Watch interview with two Special Court staff, Freetown, April 12, 2005.

[74] Human Rights Watch interview with Special Court staff, Freetown, April 18, 2005; Human Rights Watch group interview with Special Court staff, Freetown, April 18, 2005. See also Ruling on Disclosure Regarding Witness TF1-015 (RUF) (Trial Chamber I), January 28, 2005; Ruling on Disclosure Regarding Witness TF1-195 (RUF) (Trial Chamber I), February 4, 2005; U.C. Berkeley War Crimes Studies Center, “Special Court Monitoring Program Update #19, Trial Chamber I – RUF Trial,” January 28, 2005 and “Special Court Monitoring Program Update #20, Trial Chamber I – RUF Trial,” February 4, 2005 [online], http://ist-socrates.berkeley.edu/~warcrime/weeklyupdate.htm (retrieved October 19, 2005).

[75] Human Rights Watch interview with Special Court staff, Freetown, April 18, 2005.

[76] Such adjournments have been previously granted by the chambers. See Ruling on the Oral Application for the Postponement of the Testimony of Witness TF1-060 (Sesay) (Trial Chamber I), July 27, 2004.


<<previous  |  index  |  next>>November 2005