01.07.07 - ICTR/DEFENCE - FRENCH LAWYERS FACE COMMON LAW

  Paris, 01 July 2007 - The defence before international criminal courts constitutes a challenge for a French lawyer more accustomed to inquisitorial procedure than with the Anglo-Saxon model (Common law) set up in these ad hoc courts, implying for them new approaches which were the subject of a conference held on Wednesday in Paris.   
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Five French lawyers, of whom four intervened before the International Criminal Tribunal for Rwanda (ICTR), detailed the principles of investigations then of the proceedings before the criminal courts created in 1993 and 1994.
 
The French lawyer, differently from his Anglo-Saxon colleagues, is hardly accustomed to carrying out an investigation, to finding witnesses being able to defend his client, to selecting them and preparing them with their testimony or questioning the witnesses of the prosecution.
 
"It is imperative to know the geography of the places", indicated Vincent Courcelle-Labrousse who, with Arthur Vercken, defended Jean Mpambara, former mayor of Rukara (eastern Rwanda) acquitted by the ICTR in September 2006. The lawyer explained that he was able to refute the prosecution arguments due to his knowledge of the places.

Before the ICTR, coexists "two antagonistic investigations, that of the prosecution and of the defence", the trial being their confrontation under the arbitration of the court, explained Jean-Marie Biju-Duval, who defended the historian Ferdinand Nahimana accused in the media case in appeal.
 
The witness represents "the combat line where the two sides clash", added Courcelle-Labrousse.

From where the need, they affirmed, to work upstream with the chosen witnesses, to carry out the sorting in their statements between direct and indirect testimonies. They will have to be rigorously selected since they will be subjected to the shock of the proceedings. But to prepare a witness does not mean to influence the witness, pointed out François Roux, the defence lawyer of, among others, the former mayor Ignace Bagilishema also acquitted.
 
Any witness, for the defence or the prosecution, is the subject of a cross-examination by the opposing side. From where, according to Roux, beyond obvious deontological questions, there is a need not to influence a witness of the defence which will later be cross examined by the prosecution.
 
Any cross-examination being limited to the points evoked at the time of the examination in chief, it is "vital for the defence" to prepare for the prosecution witnesses, indicated Courcelle-Labrousse.
 
Vis-à-vis with the prosecution, the defence is in a situation of inequality, declared Biju-Duval, its average resources being quite inferior to those of the prosecutor. "There is only the indigent in these procedures when the defence needs tens of thousands of euros to carry out its investigations", he added.
 
The role of a lawyer is not summarized with the defence of genocidaire or war criminals. The adoption of the international Criminal Court (ICC), created in July 1998, made it possible for the victims to become actors in the legal procedures, indicated Emmanuel Daoud, lawyer of citizens of the Democratic Republic of Congo (DRC) in Thomas Lubanga Dyilo's case. The trial of this former Congolese rebel is progress before the ICC.
 
PAS/AT/MM
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