On Wednesday 26 November, together with Chris Gosnell, defense counsel practicing before the International Criminal Tribunal for the Former Yugoslavia (ICTY), researcher Jill Coster van Voorhout provided the first training module to participants from 15 Lebanese NGOs. The attendants followed this second phase of the training on monitoring of international court proceedings in The Hague, after they had had an initial three-day training in Beirut, Lebanon, on topics such as fair trial standards and the purpose and good practices of trial monitoring.
This module addressed conditions of arrest, length of detention, self-representation, disclosure of evidence and ineffective assistance by defense counsel. For that latter topic, Coster van Voorhout contrasted the standards adopted in international criminal proceedings and international human rights law.
On the one hand, international criminal proceedings have laid down a standard for ineffective legal assistance, e.g. in the ICTY case of Tadić, which later got confirmed in the case of the International Criminal Tribunal for Rwanda (ICTR)’s case of Akayesu(see also Blagojević and Krajišnik). In short, the appellant who complains about ineffective legal assistance has to demonstrate “gross incompetence” of counsel and “(…) that there was reasonable doubt as to whether a miscarriage of justice resulted.” Although the ICTR requires prejudice, i.e. but for counsel, the result of the proceedings would have been different, the tribunal also mentioned that “(…) even if such prejudice is not proven the question remains, as to whether the proven incompetence constitutes a violation of the statutory right of the accused to assistance by competent counsel and would consequently warrant aremedy.” The application of the standard in Nahimana et al in 2007 shows that counsel’s absence during hearings amounted to gross professional misconduct, so that any evidence presented during these sessions could not be relied upon against the appellant. However, in this case, counsel’s failure to cross-examine certain witnesses because of his absence “did not result in a miscarriage of justice” and concrete factual findings of the first instance proceedings were not annulled.
On the other hand, international human rights law has set a standard for ineffective legal assistance, under the European Convention of Fundamental Freedoms and Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR). Under the ECHR, the standard is that authorities have to intervene in the case if the failure of counsel to provide “effective representation is manifest or sufficiently brought to their attention in some other way”. Prejudice does not have to be established. Wrong advice of counsel to the accused can constitute an “error [that] was so fundamental that it deprived the applicant of a fair trial”. Under the ICCPR in death penalty cases, the standard is that the state has a positive duty to ensure that the legal assistance provided is effective. This standard places the onus on the authorities to guarantee that the accused benefits from an effective defense through corresponding assistance by his lawyer provided indeed meets at least a minimum of effectiveness.
A contrast between the two standards indicates that it is significantly harder for the accused to prove ineffective legal assistance in international criminal proceedings than under human rights law, while the tribunals are self-referential because they have not explained or justified the standard adopted in light of human rights law or comparative criminal procedure. It is therefore important to examine how the Special Tribunal for Lebanon and domestic courts in Lebanon will deal with ineffective legal assistance and whether or not they will place a positive duty upon the authorities to ensure that legal assistance is indeed effective.
The training in The Hague lasted two more days, and entailed court visits and other capacity building sessions.