Case No.: IT-95-13/1-PT
Before:
Judge Carmel Agius, Presiding
Judge Jean-Claude Antonetti
Judge Kevin Parker
Deputy Registrar:
David Tolbert
Decision of:
04 May 2004
PROSECUTOR
v.
VESELIN SLJIVANCANIN
Counsel for the Prosecutor:
Jan Wubben
Counsel for the defence:
Mr Novak Lukic and Mr Momcilo Bulatovic for Veselin Sljivancanin
THE DEPUTY REGISTRAR,
CONSIDERING the Statute of the Tribunal as adopted by the Security Council under Resolution 827 (1993), and in particular Article 21 thereof;
CONSIDERING the Rules of Procedure and Evidence (hereinafter “Rules”) as adopted by the Tribunal on 11 February 1994, as subsequently amended, and in particular Rules 44 and 45 thereof;
CONSIDERING the Directive on Assignment of Defence Counsel (hereinafter “ Directive”), as adopted by the Tribunal on 28 July 1994, as subsequently amended, and in particular, Articles 8, 10, 11(A) (ii) and 18 thereof;
CONSIDERING that on 7 July 2003, Veselin Sljivancanin (hereinafter “Accused ”) submitted a declaration of means to the Registry, claiming legal aid on the basis that he did not have sufficient means to remunerate counsel;
CONSIDERING that on 23 September 2003, the Accused requested that Mr Novak Lukic, attorney at law from Belgrade, be assigned as his counsel;
CONSIDERING that on the same date, Mr Lukic requested that Mr Momcilo Bulatovic, attorney at law from Belgrade, be assigned as co-counsel to the Accused;
NOTING the decisions of the Registrar dated 29 September 2003 temporarily assigning Mr Lukic as lead counsel and Mr Bulatovic as co-counsel to the Accused for a period of 60 days pending the determination of the Accused’s financial status, and the decision of the Deputy Registrar dated 8 December 2003 extending these assignments until 31 January 2004;
CONSIDERING the information provided by the Accused in his declaration of means and the evidence gathered by the Registry during an inquiry into the Accused’s means pursuant to Article 10(A) of the Directive;
CONSIDERING that according to Article 8 (b) of the Directive, the eligibility of an accused for legal aid shall be determined by taking 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. […] Account may also be taken of the apparent lifestyle of a suspect or accused, and of his enjoyment of any property, movable or immovable, and whether or not he derives income from it.”
CONSIDERING that on 30 January 2004, the Registry issued its Decision on the extent to which the Accused is able to remunerate counsel (hereinafter “Registry Decision”) in which it decided that the Accused should bear the cost of 202 hours of investigative and legal support work performed during the pre-trial stage of the proceedings, and that those hours would be deducted from the allotment of hours provided by the Registry for support staff under the current legal aid payment system of the Tribunal;
CONSIDERING the Accused’s Request for Review of the Registrar’s Decision of January 30, 2004, filed on 12 February 2004, in which the Accused requested a review of the Registry Decision;
CONSIDERING that on 6 April 2004, the Trial Chamber issued an “Order on Defence Request for the Review of the Registrar’s Decision of January 30, 2004”, directing the Deputy Registrar, by 20 April 2004, to:
(a) file (i) copies of any material upon which the Deputy Registrar based the Registry decision; and (ii) comments on the Motion (collectively “Registry Submission”); and
(b) clarify the total number of hours allotted by the Registry to Mr Sljivancanin for the pre-trial stage of the case Prosecutor v. Mile Mrksic, Miroslav Radic, Veselin Sljivancanin;
CONSIDERING that on 20 April 2004 the Registry filed a request for a fourteen (14) day extension of time within which to file either the Registry Submission as requested by the Chamber or a new decision declaring the Accused fully indigent for the purposes of granting legal aid and that the Trial Chamber duly granted the requested extension of time;
CONSIDERING that the Registry has recently re-examined its policy for determining the eligibility of an accused for legal aid and formulated a “Policy for Determining the Extent to which a Suspect or an Accused is able to Remunerate Counsel” (hereinafter “Registry Policy”), appended to this Decision;1
NOTING that according to the Registry Policy, the Registry deducts from an applicant’s disposable means the estimated living expenses of his family and dependents during the estimated period in which the applicant will require representation before the International Tribunal, the amount remaining being the contribution to be made by the applicant to his defence;2
CONSIDERING that the Accused has a wife, (hereinafter “Accused’s spouse”), and three children living at home: a nineteen-year-old son and two daughters aged twenty-three and twenty-six (hereinafter “children with whom the Accused habitually resides”);
CONSIDERING that the Accused owns an apartment in Belgrade, Serbia and Montenegro (hereinafter “principal family home”)3;
NOTING that according to the Registry Policy, the Registry includes in an applicant’s disposable means the equity in the principal family home to the extent that the principal family home exceeds the reasonable needs of the applicant, his spouse and the persons with whom he habitually resides;4
CONSIDERING that the Accused’s principal family home does not exceed the reasonable needs of the Accused, his spouse and the children with whom he habitually resides, and therefore is not included in the Accused’s disposable means;5
NOTING that according to the Registry Policy, the Registry excludes from an applicant’s disposable means the equity in furnishings in the principal family home unless those furnishings exceed the reasonable needs of the applicant, his spouse and the persons with whom he habitually resides;6
CONSIDERING that the furnishings in the Accused’s principal family home do not exceed the reasonable needs of the Accused, his spouse and the children with whom he habitually resides and are therefore not included in the Accused’s disposable means;7
CONSIDERING that the Accused has a half-share of a house and adjacent land in Zabljak, Montenegro (hereinafter “property in Zabljak”)8;
CONSIDERING that according to the Registry policy, the Registry includes in an applicant’s disposable means the equity in any real estate other than the principal family home9;
CONSIDERING that the Accused’s half share of the property in Zabljak is included in the Accused’s disposable means10;
CONSIDERING that the Accused’s twenty-six-year-old daughter owns a 1990 Toyota Corolla, (hereinafter “principal family vehicle”)11;
NOTING that according to the Registry Policy, the Registry excludes from an applicant’s disposable means the equity in the principal family vehicle to the extent that the principal family vehicle is reasonably necessary for the applicant, his spouse and the persons with whom he habitually resides;12
CONSIDERING that the Accused’s principal family vehicle does not exceed the reasonable needs of the Accused, his spouse and the children with whom he habitually resides and is therefore not included in the Accused’s disposable means13;
CONSIDERING that the Accused receives a monthly pension14;
CONSIDERING that the Accused’s spouse receives a monthly salary15;
CONSIDERING that under the marital property regime of Serbia and Montenegro, the salary of the Accused’s spouse constitutes marital property, owned jointly by the Accused and his spouse, and may thus be considered for the purposes of calculating the Accused’s disposable means;16
NOTING that according to the Registry Policy, the Registry includes in an applicant’s disposable means, income of the applicant, his spouse and the persons with whom he habitually resides and that such income is calculated on the basis that it will continue to be received from the date the Registry files its decision on the extent to which an applicant is able to remunerate counsel until the conclusion of the estimated period in which the applicant will require representation before the International Tribunal;17
CONSIDERING that the income expected to be received by the Accused and his spouse from 30 January 2004, when the Registry filed its Decision on the extent to which the Accused is able to remunerate counsel until the conclusion of the estimated period in which the applicant will require representation before the International Tribunal is included in the Appellant’s disposable means;18
CONSIDERING that in determining the extent to which an applicant is able to remunerate counsel, the Registry shall apply the formula in Section 11 of the Registry Policy, which reads:
Where:
DM represents an applicant’s disposable means as calculated under Sections 5-8 of the Registry Policy
ELE represents the estimated living expenses of an applicant, his spouse, his dependants and the persons with whom he habitually resides as calculated under Section 10 of the Registry Policy
C represents the contribution to be made by an applicant to his defence
CONSIDERING that in applying the formula DM – ELE = C, the Accused’s contribution is de minimis and that the Registry retains discretion under Article 8 of the Directive not to require the Accused to contribute such a sum to his defence; 19
AFFIRMS without prejudice to Article 18 of the Directive, the Registry Decision to the extent that it confirms the assignment of Mr Lukic as lead counsel to the Accused and the assignment of Mr Bulatovic as co-counsel, and under the conditions laid down in the decision of his assignment dated 29 September 2003;
DECIDES in light of the foregoing and in accordance with article 11(A)(ii ) of the Directive, that the Accused is unable to remunerate counsel.
_________
David Tolbert
Deputy Registrar
Dated this 4th day of May 2004
At The Hague
The Netherlands
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