Case No. IT-95-13/1-PT

IN TRIAL CHAMBER II

Before:
Judge Carmel Agius, Presiding
Judge Jean Claude Antonetti
Judge Kevin Parker

Registrar:
Mr. Hans Holthuis

Decision of:
9 March 2004

PROSECUTOR

v.

MILE MRKSIC

___________________________________

DECISION ON DEFENCE REQUEST FOR REVIEW OF THE REGISTRAR’S DECISION ON PARTIAL INDIGENCE OF MRKSIC

___________________________________

The Office of the Prosecutor:

Mr. Jan Wubben

Counsel for the Accused Mile Mrksic:

Mr. Miroslav Vasic

Counsel for the Accused Miroslav Radic:

Mr. Borivoje Borovic
Ms. Mira Tapuskovic

Counsel for the Accused Veselin Sljivancanin:

Mr. Novak Lukic
Mr. Momcilo Bulatovic

 

TRIAL CHAMBER II (“Trial Chamber”) of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (“Tribunal”),

BEING SEISED of the “Defense Request for Review of the Registrar’s Decision from the 25th of September 2002”, filed on 4 October 2002 (“Motion”), in which the Accused Mile Mrksic (“Mrksic”) requests the Trial Chamber to review the “Decision ” of the Registrar dated 25 September 2002 (“Registrar’s Decision”), determining inter alia that the cost of 330 hours of investigative work at the pre-trial stage shall be borne by Mrksic;

NOTING that, in the Motion, Mrksic argues that the Registrar of the Tribunal (“Registrar”) has erroneously determined the facts on which he based the Registrar’s Decision;1

NOTING that, in response to a Trial Chamber order,2 on 23 October 2002, the Registry submitted comments on the Motion as well as materials supporting the Registrar’s Decision (collectively “Registry’s Comments”);

NOTING that, in the Registry’s Comments, the Registry inter alia submitted the following:

(i) that the assessment of the financial status of Mrksic in the Registrar’s Decision was taken in accordance with the Directive on Assignment of Counsel (“Directive”); and

(ii) that Mrksic has not produced the evidence required by Article 8 (A) of the Directive, which would substantiate that he is entirely unable to participate to the costs of his defence;

NOTING that the Registrar has primary responsibility in the determination of matters relating to assignment of counsel under the Rules of Procedure and Evidence of the Tribunal (“Rules”) and the Directive;3

NOTING that a decision on partial indigence of an accused is taken by the Registrar, pursuant to Article 11 A (ii) of the Directive, which provides:

After examining the declaration of means laid down in Article 7 (B) and (C) and relevant information obtained pursuant to Article 10, the Registrar shall determine how far the suspect or accused lacks means to remunerate counsel, and shall decide, providing reasons for his decision:

...

... that the suspect or accused disposes of means to partially remunerate counsel in which case the decision shall indicate which costs shall be borne by the Tribunal

...

NOTING that in order to determine whether an accused is unable to remunerate counsel, the Registrar shall take into account the range of means set out in Article 8 (B) of the Directive;4

NOTING that pursuant to Article 8 (A) of the Directive, the burden to produce evidence of indigence lies with an accused;5

CONSIDERING that pursuant to Article 13 (B) of the Directive, a Chamber may review a decision of the Registrar on partial indigence of an accused;

CONSIDERING that the standard for judicial review of an administrative decision of the Registrar, taken pursuant to Article 11 A (ii), is the following:

A judicial review of such an administrative decision is not a rehearing. Nor is it an appeal, or in any way similar to the review which a Chamber may undertake of its own judgment in accordance with Rule 119 of the Rules of Procedure and Evidence. A judicial review of an administrative decision made by the Registrar in relation to legal aid is concerned initially with the propriety of the procedure by which the Registrar reached the particular decision and the manner in which he reached it. The administrative decision will be quashed if the Registrar has failed to comply with the legal requirements of the Directive. This issue may in the particular case involve a consideration of the proper interpretation of the Directive. The administrative decision will also be quashed if the Registrar has failed to observe any basic rules of natural justice or to act with procedural fairness towards the person affected by the decision, or if he has taken into account irrelevant material or failed to take into account relevant material, or if he has reached a conclusion which no sensible person who has properly applied his mind to the issue could have reached (the “unreasonableness” test).6

CONSIDERING therefore, that a Chamber’s role is to consider the propriety of a decision of the Registrar, in reference to the principles set out above;

CONSIDERING that, in accordance with Article 8 (B) of the Directive, the following means were taken into account in reaching the Registrar’s Decision:

(1) the average monthly pensions of Mrksic and his spouse;

(2) Mrksic’s property, notably:

(i) two apartments in Belgrade;

(ii) a garage; and

(iii) a vehicle;7

CONSIDERING further, that, in accordance with Article 11 of the Directive, Mrksic’s declaration of means8 and other relevant information obtained by means of inquiry9 were also properly taken into account by the Registrar in assessing the indigence of the accused;

CONSIDERING that Mrksic has not adduced any evidence of information improperly considered by the Registrar;

FINDING that the Registrar’s Decision has been adopted in compliance with Article 8 (B) and Article 11 of the Directive, which set out the process by which the Registrar determines whether an accused is entitled to have his counsel paid for by the Tribunal and, that as a result, the Registrar has properly interpreted the Directive; 10

FINDING that there is absolutely nothing submitted by Mrksic in support of the Motion to even hint that the Registrar has failed to observe any rules of natural justice and has not acted with procedural fairness towards the persons affected by the decision;

FINDING that Mrksic has failed to produce evidence that he is unable to remunerate counsel as is required under Article 8 (A) of the Directive;

FINDING finally, that the Registrar has not reached a conclusion which no sensible person who has properly applied his mind to the issue could have reached ;

CONSIDERING that pursuant to Article 13 (B) of the Directive, a Chamber when reviewing a decision of the Registrar on partial indigence of an accused may either (i) confirm the Registrar’s decision; or (ii) rule that counsel should be assigned ;

For the foregoing reasons,

TRIAL CHAMBER II HEREBY

CONFIRMS the Registrar’s Decision and DISMISSES the Motion.

 

Done in French and English, the English version being authoritative.

Dated this 9th day of March 2004,
At The Hague
The Netherlands

____________
Carmel Agius
Presiding Judge

[Seal of the Tribunal]

1 - Motion, paras 3-8.
2 - Order to the Prosecution and Registry to Comment on the Defence Request for Review of the Registrar’s Decision from the 25th of September 2002, 9 October 2002.
3 - See, Article 45 (A) of the Rules; The Prosecutor v. Enver Hadzihasanovic & Amir Kubura, Case No.: IT-01-47-PT, Decision on Urgent Motion for ex parte Oral Hearing on Allocation of Resources to the Defence and Consequences Thereof for the Rights of the Accused to a Fair Trial, 17 June 2003; The Prosecutor v. Milan Milutinovic, Dragoljub Ojdanic, Nikola Sainovic, Case No.: IT-99-37-PT, Decision on Motion for Additional Funds, 8 July 2003; The Prosecutor v. Milan Milutinovic, Dragoljub Ojdanic, Nikola Sainovic, Case No.: IT-99-37-PT73.2, Decision on Interlocutory Appeal on Motion for Additional Funds, 13 November 2003, para. 19.
4 - Article 8 (B) of the Directive provides: “In order to determine whether the suspect or accused is unable to remunerate counsel, there shall be taken into account means of all kinds of which he has direct or indirect enjoyment or freely disposes, including but not limited to direct income, bank accounts, real or personal property, pensions, and stocks, bonds, or other assets held, but excluding any family or social benefits to which he may be entitled. In assessing such means account shall also be taken of the means of the spouse of a suspect or accused, as well as those of persons with whom he habitually resides.”
5 - Article 8 (A) of the Directive; The Prosecutor v. Miroslav Kvocka, Mlado Radic, Zorna Zigic & Dragoljub Prcac, Case No. : IT-98-30/1-A, Decision on Review of Registrar’s Decision to Withdraw Legal Aid from Zoran Zigic, 7 February 2003, para. 14 (Zigic Appeals Decision).
6 - Zigic Appeals Decision, para. 13.
7 - Registrar’s Decision, p.1.
8 - See Article 7 of the Directive.
9 - See Article 10 of the Directive.
10 - Article 8 (B) of the Directive provides: “In order to determine whether the suspect or accused is unable to remunerate counsel, there shall be taken into account means of all kinds of which he has direct or indirect enjoyment or freely disposes, including but not limited to direct income, bank accounts, real or personal property, pensions, and stocks, bonds, or other assets held, but excluding any family or social benefits to which he may be entitled. In assessing such means account shall also be taken of the means of the spouse of a suspect or accused, as well as those of persons with whom he habitually resides.”
11 - Article 8 (A) of the Directive; Ojdanic Appeals Decision, para. 14.    

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