Case No. IT-04-74-PT

Prosecutor v. Berislav Pusic

THE DEPUTY REGISTRAR,

NOTING the Statute of the Tribunal as adopted by the Security Council under Resolution 827 (1993), and in particular Article 21 thereof;

NOTING the Rules of Procedure and Evidence as adopted by the Tribunal on 11 February 1994, as subsequently amended (“Rules”), and in particular Rule 45 thereof ;

NOTING the Directive on Assignment of Defence Counsel as adopted by the Tribunal on 28 July 1994, as subsequently amended (“Directive”), and in particular Articles 6, 8, 10, 11(A)(ii) and 23(C) thereof;

NOTING that on 5 April 2004, the day he surrendered to the Tribunal, Berislav Pusic (“Accused”) informed the Registry that he would not apply for Tribunal legal aid and that he had retained Mr Marinko Skobic as counsel to represent him before the Tribunal;

CONSIDERING that Mr Skobic has represented the Accused as retained counsel until the present;

CONSIDERING that on 18 September 2004, the Accused submitted a declaration of means to the Registry of the Tribunal, applying for Tribunal legal aid on the basis that he did not have sufficient means to remunerate counsel;

CONSIDERING that the Registry has examined the information provided by the Accused in his declaration of means and has completed an inquiry into the Accused’s means pursuant to Article 10(A) of the Directive;

CONSIDERING that the Accused was given an opportunity to comment on the findings of the Registry’s inquiries into his means before the Registry made its final determination on his ability to remunerate counsel;

CONSIDERING that pursuant to Article 8(B) of the Directive, the eligibility of an accused for legal aid shall be determined by taking 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, pensions , 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. Account may 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”;

CONSIDERING that the Registry determines the eligibility of an accused for legal aid in accordance with Article 8 of the Directive and the “Registry Policy for Determining the Extent to which a Suspect or an Accused is able to Remunerate Counsel” (“Registry Policy”) which is attached as Appendix II to this Decision;

NOTING that under the Registry Policy, the Registry first determines the disposable means of an applicant for legal aid and then deducts from the disposable means the estimated living expenses of his family and dependents during the estimated period in which the applicant will require representation before the Tribunal, the amount remaining being the contribution to be made by the applicant to the costs of his defence;¹

CONSIDERING that the Accused’s current place of residence and his principal place of residence are not owned by him and are therefore not included in his disposable means;²

CONSIDERING that in addition to his current and principal places of residence , the Accused owns an apartment and two parcels of land, and that under Section 5(e) of the Registry Policy, the equity in such property may be included in the Accused’s disposable means; ³

CONSIDERING therefore that the equity in the above-mentioned properties is included in the Accused’s disposable means;⁴

CONSIDERING that the Accused is the registered owner of a half-share of an additional parcel of land but that he has shown that he has no equitable title to that property and that he cannot dispose of it or borrow funds against it to pay for the costs of his defence;⁵

CONSIDERING therefore that this property is not included in the Accused’s disposable means;⁶

CONSIDERING that the Accused owns a half-share in a company and that under Section 5(e) of the Registry Policy, equity in assets such as companies may be included in the Accused’s disposable means;⁷

CONSIDERING therefore that the equity in the Accused’s half-share in the company is included in his disposable means;⁸

CONSIDERING that the Accused has bank debts and that under Section 5(d) of the Registry Policy, such debts may be included in the Accused’s disposable means ;⁹

CONSIDERING therefore that the Accused’s debts are included in his disposable means as a negative integer;¹⁰

CONSIDERING that neither the Accused, nor his spouse nor those persons with whom he habitually resides receive income that could reasonably be included in his disposable means;¹¹

CONSIDERING that in accordance with the Registry Policy, the estimated living expenses of the Accused and his family during the estimated period in which the Accused will require representation before the Tribunal are deducted from his disposable means, the amount remaining being the contribution to be made by the Accused to his defence;¹²

CONSIDERING that in determining the extent to which the Accused is able to remunerate counsel, the Registry applies the formula in Section 11 of the Registry Policy, which reads:

Where:

DM represents an applicant’s disposable means as calculated under Sections 5-8 of the Registry Policy.

ELE represents the estimated living expenses of an applicant, his spouse, his dependants and the persons with whom he habitually resides as calculated under Section 10 of the Registry Policy.

C represents the contribution to be made by an applicant to his defence.

CONSIDERING that by applying the formula DM – ELE = C, the Accused’s contribution is US$51,491 and that as such he is partially able to remunerate counsel;¹³

CONSIDERING that on 21 March 2005, the Accused informed the Registry that he had selected Mr Fahrudin Ibrisimovic, attorney at law from Bosnia and Herzegovina , from the Tribunal’s Rule 45 list of counsel eligible to be assigned to indigent suspects or accused and requested the Registry to assign Mr Ibrisimovic as his counsel upon its determination of his eligibility for legal aid;

NOTING that Mr Ibrisimovic has indicated his willingness to represent the Accused as his assigned counsel;

NOTING that Mr Ibrisimovic is currently representing Amir Kubura in The Prosecutor v Hadzihasanovic et al.;

CONSIDERING that the Registry is of the view that no conflict of interest exists between Mr Ibrisimovic’s representation of Mr Kubura and his representation of the Accused;

CONSIDERING that the Registry is of the view that Mr Ibrisimovic’s representation of both Mr Kubura and the Accused will not prejudice the defence of either Mr Kubura or the Accused;

CONSIDERING that both Mr Kubura and the Accused have consented in writing to Mr Ibrisimovic representing them both in accordance with Article 16(E)(i) of the Directive;

CONSIDERING that the costs of an accused’s defence before the Tribunal are contingent on the level of complexity of the case and, for the purposes of the trial stage, the estimated duration of proceedings;

CONSIDERING that the Registry has not yet finalised these determinations in the Accused’s case, but that once finalised these determinations will be communicated to the Accused’s counsel;

DECIDES in light of the foregoing and in accordance with Article 11(A)(ii ) of the Directive, that the Accused is partially eligible for legal aid and that he shall contribute US$51,491 to his defence costs;

DECIDES that with the exception of the Accused’s contribution of US$51,491 , the expenses referred to in Articles 22, 26 and 27 of the Directive shall be borne by the Tribunal;

DECIDES without prejudice to Article 18 of the Directive and pursuant to Article 11(A)(i) of the Directive to assign Mr Fahrudin Ibrisimovic as counsel to the Accused permanently, effective as of 18 September 2004, the date upon which the Accused applied for Tribunal legal aid.

John Hocking
Deputy Registrar

Dated this 11th day of May 2005
At The Hague,
The Netherlands