IN THE TRIAL CHAMBER
Before: Judge Gabrielle Kirk McDonald, Presiding
Judge Elizabeth Odio Benito
Judge Saad Saood Jan
Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh
Decision of: 30 September 1997
DECISION ON DEFENCE PRELIMINARY
MOTION ON THE ASSIGNMENT OF COUNSEL
The Office of the Prosecutor
Mr. Grant Niemann
Mr. Clint Williamson
Counsel for the Accused
Mr. Toma Fila and Ms. Jelena Lopicic, for Slavko Dokmanovic
I. INTRODUCTION AND PROCEDURAL BACKGROUND
1. On 7 August 1997 Slavko Dokmanovic ("the Accused") filed a "Preliminary Motion by Accused" (Official Record at Registry Page Number ("RP") D393-D397) (the "Motion") for consideration by this 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 ("International Tribunal"). The Motion challenged the Decision of the Registrar of 30 July 1997 (RP D256) which found that the Accused had sufficient means to engage counsel of his choice and, therefore, decided that Mr. Toma Fila was not to be assigned as defence counsel by the Registry. Mr. Fila had been temporarily assigned by the Registrar on 30 June 1997, for a 30-day period, while the determination of indigency of the Accused was made.
2. The Office of the Prosecutor (the "Prosecution") indicated in its "Prosecutors Response to the "Preliminary Motions by Accused" Dated 6 August 1997" (RP D504-D506), filed on 21 August 1997, that it had no position on the matter, which concerns only the Registrar and the Trial Chamber.
3. The Accused then filed an "Urgent Amendment Preliminary Motions by Accused" on 1 September 1997 (RP D860-D864,) restating his position and attaching an invoice which he had received from Mr. Fila for fees for the period 31 July to 31 August 1997. The Registrar explained her position on 4 September 1997 in a document filed as "Further Explanation of the Registrar Regarding the Decision not to Assign Toma Fila as Defence Counsel to Slavko Dokmanovic" (RP D870-D878) (the "Explanation").
4. At the hearing of 5 September 1997 the Motion was discussed and the Trial Chamber ruled that the Accused should be considered indigent and have counsel assigned to him from that time on, until further order. The written decision was reserved to a later date. On 9 September 1997 the Registrar filed her Decision (RP D880-881), pursuant to the oral ruling of the Trial Chamber, assigning Mr. Fila as counsel for the Accused, effective from 8 September 1997.
THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions of the Accused and of the Registrar,
HEREBY ISSUES ITS WRITTEN DECISION.
A. Applicable Provisions
5. Article 21 of the Statute of the International Tribunal ("the Statute") establishes the fundamental rights of accused persons. It provides in relevant part:
1. All persons shall be equal before the International Tribunal.
2. In the determination of charges against him, the accused shall be entitled to a fair and public hearing, subject to article 22 of the Statute.
3. . . .
4. In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality:
(a) . . .
(b) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;
(c) . . .
(d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
. . . .
The relevant provisions of the Rules of Procedure and Evidence ("the Rules") are as follows:
Assignment of Counsel
(A) . . .
(B) . . .
(C) In assigning counsel to an indigent suspect or accused, the following procedure shall be observed:
(i) a request for assignment of counsel shall be made to the Registrar;
(ii) the Registrar shall enquire into the means of the suspect or accused and determine whether the criteria of indigency are met;
(iii) if he decides that the criteria are met, he shall assign counsel from the list; if he decides to the contrary, he shall inform the suspect or accused that the request is refused.
(D) If a request is refused, a further request may be made by a suspect or an accused to the Registrar upon showing a change in circumstances.
. . .
(G) Where an alleged indigent person is subsequently found not to be indigent, the Chamber may make an order of contribution to recover the cost of providing counsel.
Preliminary Motions by Accused
(A) Preliminary motions by the accused shall include:
(i)-(iv) . . .
(v) objections based on the denial of request for assignment of counsel.
(B) Any of the motions by the accused referred to in Sub-rule (A) shall be brought within sixty days after his initial appearance, and in any case before the hearing on the merits.
6. Governing the assignment of defence counsel is the Directive on Assignment of Defence Counsel (Directive No. 1/94, as amended 1 August 1997, IT/73/Rev. 4) (the "Directive"), the relevant provisions of which are set out below.
In accordance with the facts of the individual case, a suspect or an accused shall be considered to be indigent if he does not have sufficient means to retain counsel of his choice.
Request for assignment of counsel
Subject to the provisions of Article 22, a suspect or accused who wishes to be assigned counsel shall make a request to the Registrar of the Tribunal by means of the form included in Annex I. A request shall be lodged with the Registry, or transmitted to it, by the suspect or accused himself or by a person authorized by him to do so on his behalf.
Applicants financial situation
(A) A suspect or accused who requests the assignment of counsel, must fulfil the requirement of indigency as defined in Article 5.
(B) In order to determine whether the suspect or accused is indigent, 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, 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.
(C) Account shall 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.
Declaration of means
For the purposes of Article 7, the Registrar shall invite a suspect or accused requesting the assignment of counsel to make a declaration of his means on the form included in Annex II.
For the purpose of establishing whether the suspect or accused satisfies the requisite conditions for assignment of counsel, the Registrar may request the gathering of any information, hear the suspect or accused, consider any representation, or request the production of any documents likely to support the request.
Decision by the Registrar
(A) After examining the declaration of means laid down in Article 8 and relevant information obtained pursuant to Article 10, the Registrar shall determine if the suspect or accused is indigent or not, and he shall decide:
(i) without prejudice to Article 19, either to assign counsel and choose for this purpose a name from the list drawn up in accordance with Article 14; or,
(ii) not to grant the request for assignment of counsel, in which case his decision shall be reasoned.
(B) To ensure that the right to counsel is not affected while the Registrar examines the declaration of means laid down in Article 8 and the information obtained pursuant to Article 10 the Registrar may temporarily assign counsel to a suspect or an accused for a period not exceeding 30 days.
Remedy against a decision not to assign counsel
(A) . . .
(B) . . .
(C) After the initial appearance of the accused, an objection against the denial of his request for the assignment of counsel shall take the form of a preliminary motion by him before the Trial Chamber not later than 60 days after his first appearance and, in any event, before the hearing on the merits.
Responsibility for costs and expenses
(A) Where counsel has been assigned, the costs and expenses of legal representation of the suspect or accused necessarily or reasonably incurred shall be met by the Tribunal subject to the budgetary provisions, rules and regulations, and practice set by the United Nations.
(B) Such costs and expenses to be met by the Tribunal shall include costs relating to investigative and procedural steps, measures taken for the production of evidence to assist or support the defence, as well as expenses for ascertainment of the facts, consultancy and expert opinion, transportation and accommodation of witnesses, postal charges, registration fees, taxes or similar duties, and all remuneration due to counsel in accordance with Articles 23 and 30.
(C) When counsel has not been assigned, and if counsel so requests, the Registrar, subject to reservations of paragraph (A), may determine that all or part of the costs and expenses of legal representation of the suspect or accused necessarily and reasonably incurred, other than the remuneration and travel expenses paid in accordance with Articles 23 and 30 following, shall be covered by the Tribunal if such expenses cannot be borne by the suspect or the accused because of his financial situation.
(D) The Financial Officer of the Registry shall reimburse the sums claimed by assigned counsel for the expenses as provided in paragraph (A) and (B) above on receipt of a statement of expenses made out using the form included in Annex III which must be approved by the Registrar.
7. The Accused challenges the determination by the Registrar, based on the Declaration of Means submitted pursuant to Article 8 of the Directive and other information gathered by her concerning his financial situation, that he had sufficient means to retain counsel of his own choosing. The Accused submits that a number of the facts relied upon by the Registrar are incorrect and that the value of his property is, in fact, significantly less than that estimated by the Registrar. In particular, it is the contention of the Accused that the house and land situated in Trpinja, Croatia, which is owned by his wife, is not worth more than 9,400 dinars, rather than 200,000 dinars. He alleges that this property is impossible for him to sell as he is a Serb refugee living in the Federal Republic of Yugoslavia. Further, a Nissan motor vehicle which he owned had been sold as scrap due to its damaged nature and the Audi motor vehicle belonging to his son is worth only 10,000 dinars. The Accused claims that the cost of living in Sombor is higher than the figure relied upon by the Registrar and points out that his wife is the only employed person in his home. He also submits that he did not lead a luxurious lifestyle and that a receipt for substantial quantities of beverages found in his possession on arrest related to the drinks for the wedding ceremony of his son and which were paid for by relatives and friends.
C. Position of the Registrar
8. In her Explanation the Registrar details the procedure for the determination of indigency of an accused person. The Registrar clarifies that account is taken only of the disposable income and capital of an accused and whenever there is any uncertainty as to his financial means, this is resolved in his favour. The Registrar states that the financial means of the Accused in the present case were assessed at approximately 80,000 DM and, as the case was not unusually grave, difficult or complex in the context of the International Tribunal, this sum was deemed sufficient to retain counsel privately. Should the financial situation of the Accused change, he would be free to make another request for assignment. The Registrar also notes the discrepancies between the Declaration of Means signed by the Accused and certain documentation supplied.
9. Article 21 of the Statute mandates the protection of the rights of accused persons. These rights are fundamental and reflect the provisions of various international human rights instruments, which were carefully considered when the Statute was adopted. It is incumbent upon the Trial Chamber to ensure full respect for those rights, including the right to be represented by legal counsel and to have counsel assigned "where the interests of justice so require" and without payment by an accused, should he not have the requisite financial means available.
10. The determination of indigency of an accused person and the assignment of counsel is within the competence of the Registrar and is regulated by the Directive. The Registrar has various methods at her disposal for the gathering and processing of relevant information and, generally, the Trial Chamber does not involve itself in this process. However, Article 13(C) of the Directive and Rule 73 of the Rules provide for an accused person to raise an objection against a decision of the Registrar not to assign counsel, addressed to the Trial Chamber, when such objection is filed as a preliminary motion within 60 days. Although not explicitly stated, these provisions imply the review of the Registrars decision by the Trial Chamber and its confirmation or reversal.
11. The Accused did not specifically request a stay of the Decision of the Registrar not to appoint Mr. Fila as his attorney after the initial 30-day period. However, it would be in the interests of justice and in keeping with the right to counsel if the Trial Chamber treated that appointment as continuing, pending its review of the Decision of the Registrar. This is extremely important, considering that also pending at that time was another preliminary motion challenging the legality of the arrest of the Accused and the hearing on that matter scheduled for 8 September 1997. It would be a violation of the right of the Accused to be represented by counsel if he were precluded from being assisted in the preparation for the hearing on this other motion by the effect of a decision currently under review by the Trial Chamber.
12. It is difficult for a Trial Chamber to make the necessary assessment of facts upon which the determination of indigency rests. The Registrar has access to the information and expertise required for this assessment and the Trial Chamber must rely on the documents supplied by her in support of her decision along with those supplied by the Accused. In this case it is clear that there is a dispute concerning the value of the property of the Accused, particularly the house and land at Trpinja, and this substantially affects the total amount of his financial assets. In addition, it is conceivable that the disposal of this property may prove problematic for the Accused in his current situation. Until the questions over the value of the property and its disposability are resolved within the Registry, the Trial Chamber finds it appropriate to exclude this property from the calculation of the financial means of the Accused. This alone has substantial effect and the Trial Chamber thus finds that the Accused is indeed indigent at the present time. He, therefore, has the right to counsel assigned by the Registrar. When further information is available, this Decision may be reconsidered by the Trial Chamber.
13. It is to be noted that, even in the event that the Accused is found to have property with a total value of 80,000 DM, the invoice of Mr. Fila for fees for the period 31 July to 31 August 1997, which amounts to 55,000 DM, would, if paid by the Accused, leave him with only 25,000 DM. Thus, whether or not the Accused was indigent at the time of the Registrars Decision, it would seem that he must be considered indigent now. However, given the Trial Chambers determination that Mr. Filas assignment continued until this Motion was resolved, the Registry is responsible for the payment of fees incurred in this period. Should it subsequently be determined that the Accused was not indigent during the period in question, he is hereby directed, pursuant to Rule 45(G) of the Rules, to reimburse the Registry that amount of fees for which the Registrar determines he is responsible.
14. The invoice submitted by Mr. Fila for those fees incurred in the period 31 July to 31 August 1997 is not sufficiently specific to determine the reasonableness of the amount claimed. The Registrar routinely requests assigned counsel to support fee requests with particularised documentation and Mr. Fila is, therefore, instructed to confer with the Registry and conform to this procedure within 30 days of the entry of this Decision.
For the foregoing reasons, THE TRIAL CHAMBER,
NOTING the Registrars formal assignment of Mr. Toma Fila as counsel for the Accused from 8 September 1997,
PURSUANT TO Rule 73 of the Rules and Article 13 of the Directive on the Assignment of Defence Counsel
HEREBY GRANTS the Motion that the Accused be considered indigent pending resolution of the dispute as to the value and disposability of the property at Trpinja;
DIRECTS the Registrar to make the necessary inquiries to determine the value of the property at Trpinja belonging to the Accuseds wife and whether this property is a disposable asset at this time;
ORDERS Mr. Toma Fila to resubmit his invoice for fees for the period 31 July 1997 to 31 August 1997, within 30 days, providing the details required by the Registry;
DECIDES that, should it be found that the Accused does have financial assets amounting to at least 80,000 DM, the Trial Chamber may reconsider this Decision and direct the appropriate reimbursement to the Registry of fees paid on behalf of the Accused to Mr. Fila.
Done in English and French, the English text being authoritative.
Gabrielle Kirk McDonald
Dated this thirtieth day of September 1997
At The Hague
[Seal of the Tribunal]