Judge Agius, Presiding
Mr Hans Holthuis, Registrar
15 February 2006
DECISION ON ASSIGNMENT OF DEFENCE COUNSEL
The Office of the Prosecutor
Mr Kenneth Scott
Mr. Daryl Mundis
Mr. Michael Karnavas and Ms. Suzana Tomanovic for Jadranko
Mr. Tomislav Kuzmanovic and Ms. Senka Nozica for Bruno Stojic
Ms. Vesna Alaburic for Milivoj Petkovic
Mr. Tomislav Jonjic for Valentin Coric
Mr. Fahrudin Ibrisimovic for Berislav Pusic
Mr Slobodan Praljak
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 (“Tribunal”) is seized of a “Request by Slobodan Praljak for the review of an opinion of the Registrar and request for the assignment of Defence Counsel” filed by the Accused Slobodan Praljak (“Accused ”) on 12 January 2006, and hereby renders its decision thereon.
1. The Accused Slobodan Praljak is indicted together with five other co-accused on eight counts of Crimes Against Humanity, nine counts of Grave Breaches of the Geneva Conventions and nine counts of Violations of the Laws or Customs of War, for his alleged participation from on or before 18 November 1991 to about April 1994, in a joint criminal enterprise.1 On 4 March 2004, Judge Antonetti confirmed the Indictment and issued a Warrant of Arrest and Orders for Surrender Under Seal, for the Accused, to the Authorities of the Republic of Croatia.2 On 5 April 2004, the Accused surrendered and were transferred to the custody of the Tribunal the same day.3 The initial appearance of the Accused was held on 6 April 2004, and he pleaded not-guilty to all of the charges against him. On 31 October 2005, the case against all six accused was transferred from Trial Chamber I to Trial Chamber II.4 Under the supervision of the pre-trial Judge, preparations for trial proceedings are in their final phase, with the trial itself expected to start in early 2006.
2. On 14 June 2004, the Accused informed the Tribunal that he wished to be represented in the proceedings by Mr. Bozidar Kovacic, with Mrs. Nika Pinter acting as co-counsel.5 On 13 September 2004, the Accused applied to the Registrar for his counsel and co-counsel to be paid by the Tribunal on the basis that he did not have sufficient means to remunerate them, and he also submitted a declaration of means.
3. On 17 June 2005, acting pursuant to Rule 45 of the Rules of Procedure and Evidence of the Tribunal (“Rules”) and the Directive on the Assignment of Counsel, the Deputy Registrar rejected the Accused’s application for assigned counsel on the basis that he had not provided the information necessary to complete the assessment of his eligibility for the assignment of counsel and had therefore failed to discharge his burden of proof.6 In his decision, the Deputy Registrar informed the Accused that “his request will be re- examined if and when he provides the Registry with the information that the Registry requires to conclude its inquiries into his ability to remunerate Counsel.” 7
4. On 5 July 2005, the Accused filed a motion before Trial Chamber I in which he requested that Trial Chamber to review the Deputy Registrar’s Decision (“Request for Review”).8 On 21 September 2005, Trial Chamber I dismissed the Accused’s Request for Review and upheld the Deputy Registrar’s Decision, finding that the Accused had not discharged his burden of demonstrating that he was unable to remunerate counsel, and had persistently refused to provide information requested of him by the Registry, and that the decision of the Registry was “reasonable.”9
5. On 8 November 2005, following the transfer of the case to this Trial Chamber, the Accused confirmed to the pre-trial Judge that he wished to be assigned a Tribunal -paid counsel. On the same day, the Registry requested the Accused to provide the necessary information for it to be able to reconsider his application for legal aid. However, on 22 December 2005, the Registrar informed the Accused by letter that he was not in a position to consider a letter from the Accused dated 15 November 2005 as a valid request for re-assessment of his eligibility for the assignment of Tribunal-paid counsel, as the Accused had failed to provide the information requested by the Registry on 8 November 2005.
6. On 12 January 2006, the Accused submitted the current request for review of the decision of the Registrar for the assignment of Defence Counsel.10 In his Request, the Accused asks that the Trial Chamber review the decision of the Registrar that the “latest request, dated 15 November 2005, would not be considered ” and, second, find “in the interest of fairness, that he cannot defend himself in this trial, assign him defense counsels and award him reasonable means necessary for (a reasonable) preparation of defence.”11 Also on 12 January 2006, the pre-trial Judge issued an order requesting all parties and the Registrar to respond to the Accused’s Request.12
7. The Registrar filed a confidential and ex parte response to the Request on 27 January 2006.13 In his response, the Registrar points out that Trial Chamber I has already dismissed the Accused’s Request for Review of the Deputy Registrar’s Decision and that the Accused failed to request certification to appeal that decision. The Registrar argues that on the basis of the principle of res judicata, a Trial Chamber cannot review a decision issued by another Trial Chamber.
8. On 30 January 2006, at a Status Conference,14 the pre-trial Judge asked the Accused if he had provided to the Registry the requested information necessary to re-examine his application for legal aid:
JUDGE ANTONETTI : Mr. Praljak, let me now turn to you, and in order to provide enough information to my fellow judges I'm going to meet tomorrow, I would like to know whether you fully responded to the requests made by the Registrar regarding your financial state of affairs today. What is it now? Can you give me information about that? Because as you well understand, because of your situation, the proceedings have come to a halt. So I'd like to give you the floor now.
THE ACCUSED PRALJAK: Thank you, Your Honour. I might take a little more of your time because the discussion between myself and the Registry has been going on for quite sometime. Now all the information that you have received from the Registrar and Registry about the fact that I have not complied with all the requests made of me fully is just not correct.…
9. The following provisions of the Statute and Rules are of relevance in addressing the Request:
Article 20 of the Statute: Commencement and conduct of trial proceedings
1. The Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses.
Article 21, paragraph 4 of the Statute: Rights of the accused
4. In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality:
d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
Rules 45 and (E) of the Rules: Assignment of Counsel
Whenever the interests of justice so demand, counsel shall be assigned to suspects or accused who lack the means to remunerate such counsel. Such assignments shall be treated in accordance with the procedure established in a Directive set out by the Registrar and approved by the permanent Judges. (Amended 14 July 2000, amended 12 Apr 2001)
Where a person is assigned counsel and is subsequently found not to be lacking the means to remunerate counsel, the Chamber may, on application by the Registrar, make an order of contribution to recover the cost of providing counsel. (Revised 30 Jan 1995, amended 14 July 2000, amended 28 July 2004)
Rule 54 of the Rules: General Rule
At the request of either party or proprio motu, a Judge or a Trial Chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial.
10. By his Request, the Accused seeks the review by the Chamber of the letter of the Registrar dated 22 December 2005 and requests an order from the Chamber that counsel be assigned to him. That letter came as a response to a letter sent by the Accused on 15 November 2005, in which, the Accused submits, additional information was provided in relation to his financial situation. However, the Registrar informed the Accused that he was “not in a position to consider his letter of 15 November 2005 as a request for re-assessment of his eligibility for the assignment of Tribunal -paid counsel, as he had failed to provide the information requested by the Registry ”15.
11. In relation to the Accused’s Request for review, the Registry essentially submits that the matter has already been determined by Trial Chamber I and that the Accused then failed to request certification to appeal from the Trial Chamber I’s decision.16 However, since the issuance of Trial Chamber I’s decision on 21 September 2005, the Accused has provided some additional, albeit limited and substantially unsupported, information as to his financial situation.17 Further, the circumstances have materially changed in recent weeks. The Accused has indicated that while he wishes to have Counsel represent him, the Counsel who had been representing him have ceased to act as he is unable to meet their fees and that he is therefore obliged to represent himself.18 The commencement of his trial and that of his five co-accused is now imminent. There is no dispute that it is a complex trial which is anticipated to last more than two years. The Accused has no legal education. Counsel for the co-accused have submitted that if the Accused is not represented, this could further delay the start of the trial itself as well as future proceedings and prejudice the fairness of the trial for his co-accused.19 These circumstances do raise new considerations which call for a fresh determination.
12. Article 21.4 (d) of the Statute, in its relevant part, provides that an accused has the right “to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.”20 It has been acknowledged in the jurisprudence of this Tribunal that a Trial Chamber may assign counsel to an accused when it is necessary to ensure the fair and expeditious conduct of the proceedings and to fully respect the rights of the accused.21 For the reasons just indicated, the Chamber is of the view that in the present circumstances and on the basis of the information currently available, it is in the interests of justice, especially having regard to the interests of the co-accused, that counsel be assigned to the Accused.
13. At present, it is the submission of the Accused that he does not have the means to meet the costs of his defence. However, the Chamber recalls that in accordance with Rule 45 of the Rules and the Directive on the Assignment of Counsel, the onus is on the Accused to produce evidence that he is unable to remunerate counsel.22 In the Chamber’s assessment the information so far provided by the Accused remains, incomplete and does not enable an adequate assessment of the financial means available to the Accused for his own defence costs. In these circumstances, the Accused will be ordered to provide further information with a view to determining what (if any ) financial means are available to the Accused.
FOR THE FOREGOING REASONS,
PURSUANT TO Articles 20 and 21 of the Statute and Rules 45 and 54 of the Rules,
HEREBY DIRECTS the Registrar to assign counsel to the Accused Slobodan Praljak ; and
ORDERS the Accused Slobodan Praljak to provide and substantiate answers to the questions set out in the Annex to this Decision, to the Registry and the Chamber within 21 days of this decision.
Done in both English and French, the English text being authoritative.
Judge Carmel Agius
Trial Chamber II Presiding Judge
Dated this fifteenth day of February 2006
At The Hague
[Seal of the Tribunal]