Case No. IT-95-11-PT

IN TRIAL CHAMBER I

Before:
Judge Bakone Justice Moloto, Presiding
Judge Janet Nosworthy
Judge Frank Höpfel

Registrar:
Mr. Hans Holthuis

Decision of:
06 December 2005

PROSECUTOR

v.

MILAN MARTIC

__________________________________________

DECISION ON DEFENCEíS MOTION FOR POSTPONEMENT OF COMMENCEMENT OF TRIAL

__________________________________________

The Office of the Prosecutor:

Ms. Hildegard Uertz-Retzlaff
Mr. Alex Whiting

Counsel for the Accused:

Mr. Predrag Milovancevic
Mr. Vuk Sekulic

 

TRIAL CHAMBER I, Section A, ("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 ("Tribunal");

BEING SEISED OF the "Motion to Postpone Setting of the Date of the Commencement of Trial" filed by the Defence of Milan Martic (ďDefenceĒ) on 21 November 2005, whereby the Defence seeks a postponement of the commencement of trial until the following Defenceís requests relating to the provision of legal aid have been decided: (i) Motion for Additional Legal Aid Funds, filed on 18 March 2005, (ii) Request to the Registry for Additional Legal Aid Funds, dated 27 September 2005, and (iii) Request to the Registry to upgrade the case to Level III, dated 1 September 2005 and supplemented on 12 October 2005;

NOTING that at a meeting pursuant to Rule 65ter of the Rules of Procedure and Evidence ("Rules") held in this case on 15 November 2005, the Parties were informed that the Pre-Trial Conference was to be held on 12 December 2005;

NOTING the Defence submits that "the time and facilities provided to the Accused and the Defence for trial preparation insofar are inadequate", and that the determination of the three requests concerning the provision of legal aid is "a necessary prerequisite for even considering to set the date of the commencement of trial";

NOTING that upon his detention on remand on 15 May 2002, the Accused qualified for legal aid in accordance with Article 21(4)(d) of the Statute and Rule 45 of the Rules;1 that the amount of legal aid granted to the Defence of the Accused was determined by the Registrar on the basis of the provisions of the Directive on Assignment of Defence Counsel ("Directive") which states that for the pre-trial phase the amount of lump sum payments for preparation for trial made to the Defence in each case depend upon the ranking of the particular case; that the ranking of a case is made by the Registrar on the basis of "complexity" factors;2 that in view of the complexity of the case at that time the Registrar ranked the case to Level I complexity;

NOTING that on 2 May 2003, following amendments to the Indictment and pursuant to Article 22 of the Directive,3 the Registry ranked the case as Level II and accordingly allotted an additional amount of 700 working hours to the lead-counsel and 1,000 working hours to the support Defence team;

RECALLING that on 20 January 2004, the Registry denied the Defenceís request of 24 November 2003 to upgrade the present case to Level III complexity but allocated an additional 400 counsel hours and 500 support staff hours to the Defence team; that shortly thereafter, on 2 February 2004, the Defence reiterated its request to the Registrar for an upgrade of the case to Level III complexity, which was denied by the Registry on 19 March 2004; that upon a request for review by the Defence, Trial Chamber I upheld the Registrarís decision of 19 March 2004 on the grounds that there were no circumstances showing that the Registrar made the decision in a manifestly unreasonable manner; that upon appeal by the Defence, the Appeals Chamber on 3 December 2004 upheld the Trial Chamberís Decision of 1 July 2004; that upon the Defenceís request for reconsideration of the Appeals Chamberís Decision of 3 December 2004, the Appeals Chamber confirmed its Decision on 14 March 2005;

NOTING that on 18 March 2005, the Defence filed a Motion for review of the Registrarís decision denying additional legal aid funds to the Defence; that the Chamber denied this motion for review on 6 December 2005 on the grounds that the Defence failed to persuade the Trial Chamber that the Registry made an error of the nature that would allow for a review of the Decision by the Trial Chamber as described by the Appeals Chamber in Kvocka4;

NOTING that the Defence notified the Trial Chamber that it has made two requests to the Registry to upgrade the case to Level III (on 1 September 2005 and supplemented on 12 October 2005) and for additional legal aid funds (on 27 September 2005); that the Registrar responded to those requests by letter of 30 November 2005, reaffirming its decision that the appropriate ranking for the present case at pre-trial is Level II, and granting an additional allotment of 160 counsel hours and 160 support staff hours to assist the Defence in the preparation for trial;

CONSIDERING that the Trial Chamber is satisfied that the Defence has received adequate legal aid funds, which should have sufficed to effectively prepare for trial; that the Defence will receive a new allotment of legal aid funds for the duration of the trial;5 and that a postponement of the commencement of the trial would affect the time when any such new allotment of legal aid funds would be made available to the Defence;

CONSIDERING that the Pre-Trial Conference is scheduled for 12 December 2005 and that the opening statements pursuant to Rule 84 are scheduled for 13 and 14 December 2005;

CONSIDERING that the presentation of evidence through witnesses will not start until at the earliest the second week of January 2006, at a date to be determined at the Pre-Trial Conference, which would allow the Accused adequate time to prepare his Defence;

CONSIDERING that the requested postponement of nine months6 is not appropriate, in particular in view of the length of pre-trial detention of the Accused; that, accordingly, the Trial Chamber is not persuaded by the Defenceís argument that the trial schedule infringes upon the Accusedís right to adequate time for preparation of his defence, or that it would be prejudicial to the fairness of the trial;

CONSIDERING that it is in the interests of justice to commence the trial on 12 December 2005 with the pre-trial conference and the Prosecutionís opening statement on 13 and 14 December 2005;

PURSUANT to Rule 54 of the Rules,

HEREBY DENIES the Motion.

 

Done in English and French, the English version being authoritative.

_____________________________
Judge Bakone Justice Moloto, Presiding

Dated this sixth day of December 2005,
At The Hague,
The Netherlands.

[Seal of the Tribunal]


1. Article 21.4(d) of the Tribunalís Statute requires the Tribunal to provide legal assistance to those accused that are unable to provide legal assistance of their own choosing. The Accused was found to be indigent by the Registry of the International Tribunal.
2. The cases may be ranked according to difficult (Level I), very difficult (Level II) and leadership (Level III). Factors to be considered to make such a determination include the number and nature of counts in the indictment, the possible amendments of the indictment, the nature of preliminary motions and challenges to the Tribunalís jurisdiction, the number of accused joined in the same case, the number of witnesses and documents involved, the geographical territory covered in the indictment, the previous ranking of the accused within the military or political hierarchy and the legal issue issues expected to arise in the course of the trial. The system of lump sum payments is described in general terms in the Report of the International Tribunal for the Former Yugoslavia to the United Nations General Assembly on the Structure and Functioning of the Legal Aid System, 31 May 2003 ("Report to the UN"), paras 18-32.
3. Article 22(A) of the Directive on Assignment of Defence Counsel states in full:
Where counsel has been assigned, the costs of legal representation of the suspect or accused necessarily and reasonably incurred shall be met by the Tribunal subject to the budgetary provisions, rules and regulations, and practices set by the United Nations. All costs are subject to prior authorization by the Registrar. If authorization was not obtained, the Registrar may refuse to meet the costs. The Registrar establishes maximum allotments for each defence at the beginning of every stage of the procedure taking into account his estimate of the duration of the phase. In the event that a phase of the procedure is substantially longer or shorter than estimated, the Registrar may adapt the allotment. In the event of disagreement on the maximum allotment, the Registrar shall make a decision, after consulting the Chamber and, if necessary, the Advisory Panel.
4. See Prosecutor v. Kvocka et al., Decision on Review of Registrarís Decision to Withdraw Legal Aid from Zoran Zigic, IT-98-30/1-A, 7 February 2003, paras 13-14.
5. The Defence was informed of such forthcoming allotment during the meeting held pursuant to Rule 65ter on 22 November 2005.
6. The Defence stated at the meeting held pursuant to Rule 65ter on 22 November 2005 that it would require nine months to further prepare for trial, Rule 65ter Conference, 22 November 2005, T. 264.