IN THE TRIAL CHAMBER
Judge Antonio Cassese, Presiding
Judge Richard May
Judge Florence Ndepele Mwachande Mumba
Mrs. Dorothee de Sampayo Garrido-Nijgh
3 September 1999
Zoran KUPRESKIC, Mirjan KUPRESKIC, Vlatko KUPRESKIC,
Drago JOSIPOVIC, Dragan PAPIC, Vladimir SANTIC, also known as "VLADO"
DECISION ON THE REGISTRARS WITHDRAWAL OF THE ASSIGNMENT OF DEFENCE COUNSEL
The Office of the Prosecutor:
Mr. Franck Terrier
Mr. Michael Blaxill
Counsel for the Accused:
Mr. Ranko Radovic, for Zoran Kupreskic
Ms. Jadranka Glumac, for Mirjan Kupreskic
Mr. Borislav Krajina, for Vlatko Kupreskic
Mr. Luko Susak, for Drago Josipovic
Mr. Petar Puliselic, for Dragan Papic
Mr. Petar Pavkovic, for Vladimir Santic
1. The Registrar has withdrawn the assignment of all Defence counsel by decisions of 6 August 1999, on the basis of having obtained information from the media that the accused were receiving substantial financial support for their legal representation from a Croatian support group called "Hrvatski uznik u Hagu", which auctions paintings and works of art by the Croatian accused in detention at the seat of the Tribunal and is said to have received DM 4.300.000 from such auctions, and that the accused were thus able to finance their own representation for the purposes of Article 19 (A) of the Directive on Assignment of Defence Counsel ("the Directive").
2. The accused have filed objections with the President of the Tribunal against this withdrawal under Article 19 (D) of the Directive based on the grounds
3. The Trial Chamber has jurisdiction to hear the objections under Articles 19 (D) and 13 (C) of the Directive. It is true that Articles 19 (D) and 13 (C) do not directly address a possible withdrawal after the start of the trial. However, the Trial Chamber holds the view that if after the initial appearance it is for the Trial Chamber to decide the issue of assignment of counsel on a preliminary motion, then the same must apply in the later stages of the proceedings. The President of the Tribunal referred the matter to the Chamber on 30 August 1999.
4. Consequently, the objections filed with the President will be treated, in the interests of an expeditious trial, as having been lodged with this Trial Chamber. As at this stage there are no more preliminary motions to which Rule 72 (A) (iv) of the Rules of Procedure and Evidence would apply, there is no time limit for these objections. The same holds true for Article 13 (C) of the Directive. The accused are thus not put in a better position than if they had filed the objections with the Trial Chamber immediately. To require the accused to file the objections anew with the Trial Chamber would merely delay the proceedings. Bearing in mind that the final hearing period of the trial is to resume on 27 September 1999, the accused and their counsel must know as soon as possible what their position will be.
5. As far as the case on the merits is concerned, there are two different issues that would have to be addressed, namely determining the meaning of "indigency" under Articles 5 and 7 of the Directive, and establishing the burden and standard of proof for indigency under Articles 10, 13 and 19 of the Directive.
6. The Trial Chamber finds that the burden of proof shifts depending on the stage at which the decision is to be made. Articles 8 to 10 of the Directive deal with the declaration of financial means and information relating thereto to be submitted by the accused to the Registrar. At the initial stage the accused must satisfy the Registrar that he fulfils the requirements of Article 5 of the Directive. Thus the burden of proof is upon him. Article 19 of the Directive deals with the withdrawal of the assignment of counsel, after an initial showing of indigency has been made to the satisfaction of the Registrar. In this case the Registrar takes away a benefit which had already been granted to the accused. The burden of proof for the withdrawal is upon her.
7. To decide the question of whether the accused are still indigent and whether the alleged payments may be taken into account for the purposes of determining that issue, the Trial Chamber must satisfy itself that the evidence before the Registrar is sufficient. Having considered the evidence before the Registrar, the Trial Chamber finds that the evidence is not sufficient. Media reports may serve as a first step to launch an investigation into the veracity of the reported facts. That newspapers and other kinds of media are very often a highly unreliable source of information is common knowledge. Their reports, unsubstantiated by other material, cannot by themselves be sufficient evidence for a court of law.
For those reasons the Trial Chamber
REVERSES the decisions of the Registrar of 6 August 1999 with respect to all accused and
ORDERS that the assignment of Defence counsel shall continue without interruption with regard to all accused.
Done in English and French, the English text being authoritative.
Dated this third day of September of 1999
At The Hague
[Seal of the Tribunal]