Case No. IT-00-39-T
Judge Alphons Orie, Presiding
Judge Amin El Mahdi
Judge Joaquín Martín Canivell
Mr Hans Holthuis
21 September 2004
Office of the Prosecutor:
Mr Mark Harmon
Mr Alan Tieger
Counsel for the Defence:
Mr Nicholas Stewart, QC
Ms Chrissa Loukas
1. On 14 July 2004 the Chamber was seized of a Defence motion for adjournment of the trial. The Prosecution took a neutral stance.1 The motion was decided orally on 16 July, at the end of a hearing at which the Defence made further submissions. The Chamber, in denying the motion, announced that written reasons would follow.
2. In its motion the Defence relied on the fair-trial guarantee embodied in Article 21 of the Tribunal’s Statute to ask for an adjournment of the trial to 4 October 2004 to allow it time to prepare its case. As the Defence rightly stated, “An essential element of a fair hearing is the opportunity of testing every aspect of the Prosecution’s case” (para. 3). This presupposes adequate time and facilities for preparation. The main issue, as pointed out in paragraph 7 of the motion, is whether the time given to the Defence has been adequate.
3. In order to determine the adequacy of the time the Defence has had in hand for preparation, the Chamber briefly recalls the relevant developments in the case:2
- The Accused made his initial appearance before the Tribunal on 7 April 2000 and has been represented by counsel ever since. The Accused’s Defence team in early May 2003 consisted of Mr Deyan Brashich (lead counsel), Mr Goran Neškovic (co-counsel ), and others including Mr Nikola Kostich (legal consultant). This team was dissolved when Mr Brashich was suspended from practice at the New York bar.3 By that stage the Defence had consumed a large number of legal-aid hours in case preparation, of which 5,135 hours were paid to Mr Neškovic.
- The Registry consulted the Accused on the assignment of new counsel. The Accused met several times with Mr Nicholas Stewart, QC. On 30 July 2003 the Registrar, in accordance with the Accused’s preference, assigned Mr Stewart as lead counsel. Ms Chrissa Loukas was assigned as co-counsel on 16 September 2003.
- The new lead counsel and co-counsel continue to be assisted by, among others, Mr Neškovic.4 Ms Tatjana Cmeric, the case manager of the current Defence team, served on the old team until three or four months prior to its dissolution.5
- In August 2003 the new lead counsel and co-counsel met over the course of a week with former counsel Mr Brashich. Reportedly, the transfer of case materials from the old to the new team was very problematic; there were significant delays in communication and the material was in a disorderly state.
- On 18 December 2003, at an informal meeting with two of the judges and other Chambers staff, the new Defence team indicated that it was not ready to proceed, and proposed that instead of the scheduled normal pace from 2 February 2004 onwards, the schedule should allow a total of 70 extraordinary non-sitting days between 2 February and 1 August 2004.
- The Chamber took into account the difficulties expressed by the Defence and adjusted the pace of the trial, sitting only 18 (out of 48) days between 2 February and 12 April.
- On 8 April 2004 the Defence requested a further adjournment.6 At the same time, the parties, encouraged by the Chamber, began to explore the possibility of expanding their agreement on facts and other matters relevant to the indictment. The Chamber ordered an adjournment lasting four weeks (late April to late May).
- On the basis of positive reports from both parties, according to which their pilot negotiations showed that agreement could be achieved on over 90 per cent of the facts under consideration, the Chamber granted an adjournment from late June onwards ; this lasted until the Defence, on 12 July, informed the Chamber that it had decided to discontinue the talks. No agreed facts were submitted to the Chamber from this process.
- The next development was the Defence’s motion of 14 July 2004.
4. Altogether, then, between 2 February 2004 and the day in July when the oral decision on the Defence’s motion was delivered, the Defence had at its disposal 75 working days in which no court hearings took place. Moreover, 18 extraordinary non-sitting days were scheduled for August and September, bringing the total number of out-of -court working days available to the Defence to 93.
5. There have been other relevant benefits for the Defence. The legal-aid time allotted by the Registrar to the current Defence team for pre-trial preparation was 2,100 counsel hours and 3,000 support-staff hours. Category 3 cases (which is the category the present case falls into) are currently allotted 2,800 counsel hours for the pre-trial stage. However, the Registrar understandably took into consideration that preparatory work of some benefit to the new Defence team had been performed by the former team in this case, which as indicated above had consumed an enormous amount of hours.7 But the Registrar also allowed the Defence to carry forward a significant number of counsel hours allotted for pre-trial work into the stage of trial proceedings, because of the special circumstances.
6. From the submissions of the Defence it appears that in the period up to the commencement of the trial in February 2004, some 1,045 counsel hours were billed by the new team. The Chamber was given to understand that, at first, counsel did not work full- time on the case, but started doing so by the end of 2003. However, the Chamber notes that even in December 2003 and January 2004, lead counsel billed less than 200 hours in total. In March 2004, when no hearings were held, lead counsel spent only around 100 hours on the case due to other professional and personal commitments. The Chamber of course accepts that not all hours spent on a case are billable hours in the remuneration system of the Tribunal.8
7. As discussed above, by mid July, Defence counsel had enjoyed 75 extraordinary non -sitting days each, i.e. 150 individual counsel days in total. At an average of 7.5 hours per day, this makes 1,125 hours. Added to the hours billed for the period preceding the start of the trial (1,045), this gives 2,170 hours. The Defence has therefore had, in effect, more hours to prepare than it was allotted by the Registrar. If the additional 18 non-sitting days (2 x 18 x 7.5 = 270 hours) in August and September are considered, the total rises to 2,440 counsel hours.
8. Even after deducing an appropriate number of (finally fruitless) hours spent on the failed attempt to reach agreement on facts, as well as hours spent on unbillable activities, it appears that the Defence has had in hand approximately the number of hours allotted to it by the Registrar for trial preparation. (The Chamber has been presented with no reason to believe that that allotment by the Registrar was unreasonable.) The Chamber accepts that the case is a complex one, but also notes that a correspondingly long trial period with all the attendant opportunities for preparation has been set aside for its completion.
9. The Defence’s overall finances were not an issue in the motion, and in any case that matter has been conclusively litigated in another context.9 The Defence depicts the present team, which includes two Serbo-Croatian-speaking legal assistants, as being adequately sized and well qualified.10
10. The Chamber now turns to the question of whether time for preparation has been “adequate”. The case-law of international bodies, such as the European Court of Human Rights and the UN Committee on Human Rights, offers little guidance when it comes to making decisions on the specifics of a case. In general, however, the circumstances and the complexity of the case are seen as critical factors.
11. The past and the present factual circumstances relating to the preparation of the Defence case do not seem to be in dispute. As mentioned above, the current Defence team took over from the former team with difficulties. As far as the Chamber is aware, two members of the current team served on the former team, although with some interruption. Communication with the Accused, who is in detention, and who communicates in Serbo-Croatian, no doubt consumes a significant amount of time, and so does travel of Defence team members to the former Yugoslavia.
12. This leaves the complexity of the case. The Defence especially emphasizes the complexity of the factual allegations, namely the alleged crimes in dozens of municipalities involving large numbers of actors and victims, and a correspondingly large amount of disclosed documentary material.
13. The complexity of the case also relates to questions of law. For example, it transpires from the indictment and related documents that the legal responsibility of the Accused, as charged, encompasses joint criminal enterprise and other aspects of Article 7(1) responsibility, in addition to command responsibility under Article 7(3) of the Statute.
14. In the Chamber’s view, the complexity of cases before the Tribunal is obvious, especially Category 3 leadership cases. The question, therefore, is what does adequate time mean in the context of this type of case.
15. A case in which the number of events and the structure of power and responsibility underlying the criminal charges cover a large territory, a long period of time, and many victims, cannot realistically be dealt with at the same level of detail as a case on a smaller scale. This necessitates and justifies limitations in case presentation by the parties. It requires the parties to identify those aspects of the case to which greater or lesser degrees of attention will be given, and to find a balance among those aspects. In the context of such constraints, the exploration, say, of the historical context of the armed conflict, necessarily competes for time with the need to verify or introduce details of “crime-base” evidence, or with the need to understand the relationships and interactions among people operating in the environment in which the Accused is alleged to have operated. Experienced counsel are expected to find a proper balance among those aspects, something expected of them also in complex domestic trials.
16. On 16 July 2004 the Chamber proceeded to decide whether the time granted in this case to the Defence for preparation had reasonably allowed it – and would reasonably allow it – to develop a competent defence. It would be unacceptable, of course, if the time granted so far to Defence should fall below the minimum necessary to make the trial fair for the Accused.
17. To make the required assessment, the Chamber took into account:
- the late start of the present Defence team and the difficulties it faced and still faces;
- the chronology since the assignment of new counsel (as set out in the motion), including the circumstances beyond the control of the Accused and the Defence team ;
- the complexity of the case as outlined above;
- all other relevant Defence submissions.
18. It balanced the above against the factors below:
- the current Tribunal practice of granting up to 2,800 counsel hours for the whole of the pre-trial stage in Category 3 cases;
- the information provided by the Defence on working hours reported to the Registry ;
- the time that has been available to the Defence to prepare, prior to the commencement of the trial, as well as in the course of the trial;
- the size and composition of the Defence team, including the advice which the Accused (who has been preparing his defence for some years now) should be in a position to supply to the Defence;
- the qualifications of the Defence team.
19. In weighing up this information, the Chamber was finally not persuaded that the trial schedule infringes upon the Accused’s right to adequate time for preparation of his defence, or that it has been or would be prejudicial to the fairness of the trial. Moreover, the Chamber assured the Defence that it would continue to closely monitor the level of the Defence team’s preparedness throughout the trial.
20. For the reasons given above, the Chamber denied the motion and ordered a hearing schedule for the continuation of the trial until the end of October 2004.
Done in English and French, the English version being authoritative.
Judge Alphons Orie
Dated this 21st day of September 2004
At The Hague
[Seal of the Tribunal]