IN TRIAL CHAMBER I
Judge Alphons Orie, Presiding
Judge Amin El Mahdi
Judge Joaquín Martín Canivell
Mr Hans Holthuis
14 May 2004
Office of the Prosecutor
Mr Mark Harmon
Mr Alan Tieger
Mr Nicholas Stewart
Ms Chrissa Loukas
1. 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 is seized of the so-called “Defence Appeal to the Deputy Registrar’s Decision dated 3 February 2004 Relating to the Contribution of the Accused to the Cost of his Defence,” filed on 19 February 2004 (the “Defence’s Request”).
2. The Complainant1 contests the Deputy Registrar’s “Decision” of 3 February 20042 on the ground that it did not follow the Chamber’s recommendation that “the Registrar should consider enlarging the average monthly expenditure allowance [of households of non-indigent or partially indigent persons in the Tribunal’s custody] to take account of the cost of SfamilyC visits according to criteria which the Registrar considers reasonable”.3
3. The relevant part of the Deputy Registrar’s Decision reads:
CONSIDERING that the Registry, after a careful analysis of this suggestion, takes the view that such an enlargement of the average expenditure component of the formula used by the Registry in the assessment of the financial status of an accused, would, in fact, result in an unequal treatment between the fully indigent accused who receive no assistance from the Tribunal for the purposes of family visits and those with more substantial means who would receive additional legal aid funds to compensate for the expense of family visits were the Registry to adopt the Chamber’s suggestion.
4. According to the Defence’s Request, the Deputy Registrar’s reason for declining the Chamber’s recommendation is “fundamentally flawed in logic and in principle.”4 The Defence contends that:
It is an inevitable result of legal aid for a fully indigent accused that to the extent to which such accused has monthly expenditure beyond a level which makes any difference to his entitlement to legal aid, he receives no form of direct or indirect compensation for such expenditure. If such excess expenditure includes travel costs for family visits, there is therefore no mechanism by which he can be reimbursed directly or indirectly for such expenditure. If it includes any other form of reasonably necessary expenditure, the same applies.5
The Defence further states that in the case of a partially indigent accused such as the Complainant, “any reasonably necessary expenditure does have the effect of reducing his net income and therefore his overall ability to meet his legal costs.” It contends that “it is impossible to achieve equality as between the fully indigent accused and a partly indigent accused, except by disregarding all expenditure of a partly indigent accused (so that neither category of accused can be said to be receiving any direct or indirect compensation for any such expenditure).” However, according to the Defence, to do that “would clearly contravene the essential principle of genuinely assessing what income and assets the accused has available to meet or contribute towards his legal costs.”6
5. The Defence concludes that “the correct question for the Registrar to have asked himself was how much actual expenditure was reasonable for Mr Krajišnik to incur on family visits to The Hague and then to deduct that amount from his monthly income in accordance with the formula.”7
6. On 5 March 2004 the Deputy Registrar filed a “Response to the Defence Appeal to the Deputy Registrar’s Decision,” in which the Deputy Registrar does not dispute that family visits to detainees are necessary, or that their cost is an essential expenditure for a detained person’s family.8 However, the Deputy Registrar claims that such visits are usually financed by third parties and “are not expenditures actually undertaken by the accused.” He submits that “the Defence’s position would have the effect of increasing legal aid funds based on what are, in essence, phantom expenditures.”9 Moreover, he submits that “Even if formal third-party funding for family visits were not available to the accused in this particular case, Registry investigations indicate that his family visits have been funded by sources other than the declared assets and income of the accused.”10 The Deputy Registrar alleges that the Complainant has concealed from the Tribunal those sources of revenue in violation of Articles 7(B) and 8(A) of the Directive on Assignment of Defence Counsel. It therefore would be inappropriate to consider the costs of such visits in the Registry’s formula.11
7. On 23 March 2004, the Defence filed a “Reply to the Registry Response to the Defence Appeal to the Deputy Registrar’s Decision” in which it claims that the Decision “is irretrievably flawed by his reliance on an invalid reason.”12 The Complainant claims not to have received financial support from any third parties.13 As to the question of assessing the Complainant’s household’s income for the purpose of determining his contribution to his defence costs, the Defence states that this matter has already been settled in earlier litigation and should not be reopened.14
8. The Chamber considers that the Deputy Registrar may not reasonably put forward the inequality of treatment of indigent and non-indigent/partially indigent detainees as a basis for refusing to increase the average monthly expenditure allowance of the Complainant’s household. The fact that the visitation costs of the families of indigent detainees are not reimbursed by the Tribunal does not justify their not being taken into account when calculating the reasonable average monthly expenditure of the households of partially indigent or non-indigent detainees. The unreasonable character of the Decision becomes apparent when the argument from inequality is applied to the expenses related to food or housing of the families of detained persons. The households of indigent detainees are not entitled to reimbursement of those expenses by the Tribunal. This, however, does not prevent the Tribunal from taking them into consideration when calculating the income available to the households of partially indigent or non-indigent detainees for the purpose of assessing the contributions they can make towards funding the defence of their detained relatives.
9. The right of a detainee to receive appropriate visits is a fundamental one expressed by paragraph 37 of the United Nations Standard Minimum Rules for the Treatment of Prisoners adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII ) of 13 May 1977. According to Article 37 of these Rules, “Prisoners shall be allowed under necessary supervision to communicate with their family and reputable friends at regular intervals, both by correspondence and by receiving visits.” This right is guaranteed by Article 63 (A) of the “Rules Governing the Detention of Persons Awaiting Trial or Appeal before the Tribunal or Otherwise Detained on the Authority of the Tribunal,” according to which “Detainees shall be entitled to receive visits from family,” and others, subject to conditions.
10. Given that under the rules of the Tribunal most accused persons are detained in The Hague at a considerable distance from their families in the Former Yugoslavia, in the absence of financial means it would be difficult, if not impossible, for the detainees to receive visits from their families. The Chamber finds that the aforementioned right of detainees is not advanced by refusing to include travel costs as a standard expenditure item in the estimated monthly outlay of households of partially indigent or non-indigent accused.
11. The Chamber considers that the argument of the Deputy Registrar provided in his Response of 5 March 2004, according to which the Complainant’s visiting costs were financed by undeclared assets or from third-party sources, has not been properly litigated. The Deputy Registrar may wish to develop this or any other legal or factual arguments in the next decision he issues.
FOR THE FOREGOING REASONS,
PURSUANT TO ARTICLE 18(C) OF THE DIRECTIVE ON ASSIGNMENT OF DEFENCE COUNSEL:
DIRECTS the Deputy Registrar to reconsider his decision dated 3 February 2004 in accordance with the Chamber’s recommendation recalled in paragraph 2, above, and in the light of the present decision.
Done in English and French, the English text being authoritative.
Dated this 14th day of May 2004
At The Hague
[Seal of the Tribunal]