The Impact of ECHR and the Case-Law of the ECtHR on the Development of the Right to Legal Assistance in International Criminal Courts (ICTY, ICTR, ICC)

Abstract

The European Convention on Human Rights and the case-law of the European Court of Human Rights have a significant impact not only on national legal order but also on international criminal courts. The article is dedicated to analyzing that impact in the context of the right to legal assistance. We ascertain the purpose of the establishment of international criminal courts, the specificity of the right to legal assistance in the European system of human rights protection, the impact of the European Convention on Human Rights on the drafting of statutes of the international criminal courts and influence of the European Convention on Human Rights and case-law of the European Court of Human Rights on the interpretation of the right to legal assistance in the international criminal courts. Also the primacy of the right to legal assistance is proved, which is provided in the ECHR to the statutes of international criminal courts. At the same time, the international criminal courts, taking into account the purpose of their establishment and jurisdiction, give additional guarantees of the right to legal assistance.

The Legal Design of Domestic MLA procedures in Southeast Europe: A Comparative Analysis of Serbia, North Macedonia and Bosnia and Herzegovina

“…First, discretion in the MLA process can lead to arbitrary decision-making, as decision-makers are not bound by specific rules (Black, 2001, p.2). This creates potential to undermine the integrity of the MLA process, especially when decisions are influenced by political interests (Buromenskyi and Gutnyk, 2019) or priorities other than justice and effective legal assistance. For instance, if political institutions such as the Ministry of Interior, Ministry of Justice, or the government more broadly hold considerable decision-making power within the MLA process, they can arbitrarily determine actions that may obstruct, delay, terminate, or even halt a specific investigation.…”

“…We therefore contend that, in the context of MLA, discretion is closer to the "detriment" end of the benevolence vs. detriment spectrum. Clearly defined procedures in MLA are of paramount importance (Pasha et al, 2021),and concerns that institutional discretion could lead to excess arbitrariness (Black, 2001, p.2), neglectful use and even political abuse (Buromenskyi and Gutnyk, 2019), are valid in the MLA context perhaps more than in most other policy areas.…”

The Right to Defence in Criminal Proceedings: International Law Aspects

“…The right to defence has been repeatedly the subject of exploring in the national criminal proceedings (Andritoi, Lupsa, 2014;Bochis, 2016;Colomer, 2013;Gentimir, 2005;Gomien, 1987;Puscasu, 2011;Salahovic, Bubalo, 2016;Taman, 1975) and in the international law (Buromenskyi, Gutnyk, 2019;Jorgensen, 2004;Rana, 2006;Redo et al, 1995;Trocan, 2010). Despite the wide range of various definitions given by scientists, we consider it appropriate to join the opinion that the right to defence in criminal proceedings is a combination of powers granted to refute suspicions or accusations, mitigate the punishment, and protect their personal interests.…”