The Prosecutor v. Miroslav Kvocka et al. - Case No. IT-98-30/1-A

“Decision on Review of Registrar’s Decision to Withdraw Legal Aid from Zoran Zigic”

7 February 2003
Judges Shahabuddeen (Presiding), Hunt, Gunëy, Gunawardana and Meron

Procedural Background

· On 16 April 1998, Zoran Zigic was transferred to the United Nations Detention Unit in The Hague. The same day he submitted a declaration of means in which he stated that he was not employed, that he did not receive any family allowances or social benefits and that he did not own any movable or immovable property.²

· On 28 April 1998, the Registrar determined that Zigic had fulfilled the requirements for granting legal aid as provided by the Directive on Assignment of Defence Counsel (“Directive”)³, and appointed Mr Tosic as his Counsel.⁴

· On 2 November 2001, Zigic was found guilty of persecution as a crime against humanity and of murder, torture and cruel treatment as violations of the laws or customs of war, and he was sentenced to twenty-five years’ imprisonment.⁵ On 21 May 2002, he appealed against his conviction and sentence.⁶ The appeal is pending.

· On 8 July 2002, the Registrar withdrew legal aid from Zigic on the basis that, since the decision to grant legal aid, Zigic had acquired sufficient means to pay for the cost of his defence for the remainder of his appeal against conviction (“Impugned Decision”).⁷

· On 30 September 2002, Zigic requested a review of the Impugned Decision by the Appeals Chamber.⁸ On 30 October 2002, the Registrar filed his Response to the Request for Review of Zoran Zigic.⁹ On 11 December 2002 Zigic filed his reply to the Registrar’s Response.¹⁰

The Decision

The Appeals Chamber found a number of errors in calculations and evaluations which did not however affect the Impugned Decision of the Registrar. Accordingly the Registrar’s Decision to withdraw legal aid from Zigic was confirmed.

The Reasoning

The legal framework

Under Article 21(4)(d) of the Statute of the Tribunal, 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”. The Directive on Assignment of Counsel identifies the circumstances under which an Accused is entitled to have legal aid assigned, and possibly withdrawn .¹¹

Under the Directive, the Accused who requests the assignment of Counsel must produce evidence that he is unable to remunerate Counsel¹², and the Registrar is permitted to enquire into his means¹³, comprised of the Accused’s own means, those of his spouse and of those with whom he habitually resides, the apparent lifestyle of the Accused and his enjoyment of any property.¹⁴

Once legal aid has been granted, the Registrar establishes that the Accused has come into means which would have caused the Registrar not to grant legal aid, had they been available at the time of the request, or if information is obtained which establishes that the Accused has sufficient means to pay for his Defence, assignment of Counsel or partial remuneration of Counsel may be withdrawn.¹⁵ Increase in the Accused’s means since the time of request is described in the present decision as “enrichment” of those means.

The inquiry by the Registrar into the means of the Accused

The Appeals Chamber found that the Registrar had correctly described the inquiry which he conducts into the means of an Accused as an “administrative fact-finding procedure”.¹⁶ It held that it is “ not in any sense a trial” and attached legal consequences to its finding: “[t]he burden of proof upon the Accused in the first instance to establish that he lacks means to remunerate Counsel, and upon the Registrar in the second instance to establish that the Accused does have the means to do so, is not satisfaction beyond reasonable doubt, as in a criminal trial, but merely satisfaction that, more probably than not, what is asserted is true, or (as is sometimes described) satisfaction on the balance of probabilities”.¹⁷ The criterion is therefore “satisfaction that what is asserted is more probably true than not”, which criteria “will in turn depend on the nature and the consequences of the matters to be proved”¹⁸, in the sense that “[t]he more serious the matter asserted, or the more serious the consequences flowing from a particular finding, the more difficult it will be to satisfy the relevant tribunal that what is asserted is more probably true than not”.¹⁹

Using this approach, the Appeals Chamber held that “the Registrar had to be satisfied that, more probably than not, Zigic now has the means to remunerate Counsel for the remainder of his appeal against conviction, bearing in mind the serious consequences to Zigic if his legal aid is withdrawn”.²⁰

The judicial review of the Registrar’s decision²¹

The Appeals Chamber made clear that “[a] judicial review of such an administrative decision is not a rehearing [nor] an appeal, or in any way similar to the review which a Chamber may undertake of its own Judgment in accordance with Rule 119²² of the Rules of Procedure and Evidence”. In its view, a judicial review of an administrative decision of the Registrar regarding legal aid is “concerned initially with the propriety of the procedure by which Registrar reached the particular decision and the manner in which he reached it”. The administrative decision “will be quashed if the Registrar has failed to comply with the legal requirements of the Directive”.

The Appeals Chamber referred to matters which may lead it to quash the Registrar’s decision: improper interpretation of the Directive, failure to observe any basic rules of natural justice or to act with procedural fairness towards the person affected by the decision, consideration of irrelevant material or failure to consider relevant material, a conclusion which no sensible person who has properly applied his mind to the issue could have reached (the “unreasonableness” test).

The onus of persuasion²³

According to the Appeals Chamber, the Accused bears the onus of persuasion in the review. He must “persuade the Chamber conducting the review (a) that an error of the nature described has occurred, and (b) that such error has significantly affected the Registrar’s decision to his detriment”. If the Accused fails to persuade the Chamber of either of these matters, the Registrar’s decision will be confirmed. If the Accused has persuaded the Chamber of both matters, the Registrar’s decision “may be quashed and, if appropriate, the Chamber may also rule that legal aid should be granted or, where it is satisfied that the Accused has the means to remunerate Counsel partially, refer the matter again to the Registrar for him to determine the portion of the cost of having Counsel for which the Accused does not have the means to pay”.

The Appeals Chamber also held that “in some cases, it may be appropriate for the Chamber simply to quash the decision and to direct the Registrar to reconsider his decision in light of the Chamber’s decision”. It asserted that “[i]t is clear, from the implicit restriction that only the Registrar may determine the extent to which the Accused has the means partially to remunerate Counsel, that the power of the Chamber to substitute its own decision for that of the Registrar is limited ”.

The Registrar’s approach

In order to determine whether Zigic now has the means to remunerate Counsel for the remainder of his appeal against conviction, the Registrar first assessed the extent to which the means of Zigic had been enriched²⁴, secondly applied a formula to his finding in relation to those means to determine the amount to which Zigic could contribute to the cost of his appeal, and thirdly assessed the likely cost of the remainder of Zigic’s appeal against conviction. The Registrar then withdrew legal aid because the amount which Zigic could contribute to the cost of his appeal exceeded the likely cost of the remainder of the appeal .

Specific complaints by Zigic concerning the findings of the Registrar²⁵

Right to be heard²⁶

The Appeals Chamber held that “the Directive does not impose upon the Registrar an obligation to hold a formal hearing, and the nature of the inquiry to be conducted in accordance with the Directive does not attract such an obligation”. It however asserted that “where action pursuant to the Directive detrimental to an Accused is contemplated, procedural fairness dictates that the Accused be afforded the right to be heard”.²⁷ Bearing in mind that the withdrawal of legal aid “may well impact negatively upon the Accused’s ability to conduct his Defence in the relevant criminal proceedings in the Tribunal, such a right entitles the Accused to be given (a) notice of the allegations against him , (b) notice in reasonable detail of the nature of the material upon which the contemplated action is to be based, and (c) the opportunity to respond to that material”.

The Appeals Chamber found in the present case that the minutes of the meetings with the Registrar’s representative²⁸ demonstrate a sufficient compliance with that entitlement and therefore did not accept that Zigic’s right to be heard had been denied.

Accuracy of the Registrar’s findings

The Appeals Chamber restated that a review is not a rehearing and that in that sense Zigic should have raised arguments about the erroneous nature of the Registrar’s findings at his meeting with the Registrar’s representative, which he did not do and so rejected the complaint.

Admissibility of the material relied upon²⁹

Zigic alleged that several of the statements taken by the Registrar have no probative value as they are not signed. The Appeals Chamber held that the complaint was “misconceived ” as Article 10 of the Directive requires the Registrar to act upon “information ” and that “[h]ow that information is given is for the Registrar to determine”. It asserted that “there is no requirement that the information be in the form of evidence which is admissible at trial” and rejected the complaint.

Adequacy of the Registrar’s reasons³⁰

Article 18(B) of the Directive requires the Registrar to give a reasoned decision when withdrawing legal aid. The Appeals Chamber held that “[t]he imposition by the Directive of an obligation upon the Registrar to give a reasoned decision when withdrawing legal aid should not […] be interpreted in the same way as the obligation upon a Chamber of the Tribunal to give reasons for its decision” and that “[w]hat is necessary in relation to the Registrar’s decision is that it makes apparent in its reasons that he has considered the issue raised by the Accused and it reveals the evidence upon which he has based his conclusion”.³¹

The Appeals Chamber found that the Impugned Decision by the Registrar was consonant with these requirements and therefore rejected the complaint.

Having rejected Zigic’s complaints concerning the propriety of the procedures the Registrar adopted in the inquiry into the means of the Accused, the Appeals Chamber then considered the sufficiency of the material before the Registrar upon which he had based the factual conclusions. It found that a number of errors had been shown in the Registrar’s Decision as regards the finding of facts or errors in calculations or valuations but also found that the errors of the Registrar had not affected his Decision.

Accordingly the Appeals Chamber confirmed the Registrar’s Decision to withdraw legal aid from Zoran Zigic.

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1. See infra under “The judicial review of the Registrar’s decision”.
2. The declaration of means is Annex 1 of the Registrar’s Decision Withdrawing Legal Aid, 8 July 2002 (“Impugned Decision”).
3. IT/73. The Directive has been amended on a number of occasions since Zigic entered custody, but not in any of its provisions relevant to these proceedings.
4. Mr Tosic was subsequently replaced by Mr Slobodan Stojanovic as lead Counsel, and Mr Tosic became Co-counsel, before being replaced by Mr Miodrag Deretic. Since 28 April 1998, the Registrar has granted legal aid to pay for a total of eight persons at different times as Counsel, legal assistants or investigators to Zigic’ Defence team, with subsequent travel costs, for a total of USD 1,425,683.37.
5. Kvocka et al., IT-98-30/1-T, Judgement, 2 November 2001, Judicial Supplement No. 29.
6. Appellant’s Brief of Argument –Defence for the Accused Zoran Zigic, 21 May 2002.
7. Decision, 8 July 2002.
8. Appeal Against the Decision by the Registrar of the Tribunal of 8 July 2002, 30 September 2002 (“Request for Review”).
9. Response of the Registry to the Request of Zoran Zigic to Review the Decision of the Registrar Dated 8 July 2002 (“Registrar’s Response”), 30 October 2002.
10. Reply to the Response of the Registry to the Request of Zoran Zigic of 30 September 2002 (“Reply”), 11 December 2002.
11. Directive, Articles 6(A) and 18 respectively.
12. Ibid., Article 8(A).
13. Ibid., Article 10(A).
14. Ibid., Article 8(B) and (C).
15. Directive, Article 18.
16. Following Zigic’s request to the Registrar in letters dated 8, 13 and 15 August 2002 that he be assigned Counsel to represent him for the purpose of the review of the Impugned Decision, the Registrar held on 21 August that the investigation conducted by the Registry into the means of an Accused was an “administrative fact-finding procedure”, and that the interest of justice did not in that context require legal aid to be assigned to an Accused to contest the factual findings of the Registrar. Zigic was nevertheless provided with an English speaking legal assistant/investigator to assist him in the preparation and presentation of his Request for Review.
17. Para. 12.
18. Ibid.
19. Ibid.
20. Para. 13.
21. Ibid.
22. Rule 119 (Request for Review)
(A) Where a new fact has been discovered which was not known to the moving party at the time of the proceedings before a Trial Chamber or the Appeals Chamber, and could not have been discovered through the exercise of due diligence, the Defence or, within one year after the final judgement has been pronounced, the Prosecutor, may make a motion to that Chamber for review of the judgement. If, at the time of the request for review, any of the Judges who constituted the original Chamber are no longer Judges of the Tribunal, the President shall appoint a Judge or Judges in their place.
(B) Any brief in response to a request for review shall be filed within forty days of the filing of the request.
(C) Any brief in reply shall be filed within fifteen days after the filing of the response.
23. Para. 14.
24. See paras. 16-37 : purchase of a two-rooms apartment, of a three-rooms apartment and of an investment in a business named “Progres”, renovation of the family house, purchase of three motor vehicles and three laptop computers, extensive family expenses for travels and lodging in The Hague, and expenditures in the Detention Unit.
25. Only the complaints of the Accused which involve the most significant legal findings will hereinafter be considered in the present summary.
26. Paras 39-40.
27. See Jelisic, IT-95-10-A, Judgment, 5 July 2001, paras. 27-28, Judicial Supplement No. 26, which refer inter alia to the “normal duty of a judicial body first to hear a party whose rights can be affected by the decision to be made”.
28. Minutes of the Meetings of 13 and 18 June 2002, filed on 10 October 2002.
29. Para. 43.
30. Paras. 49-53.
31. The Appeals Chamber noted that “[b]ecause administrative functions are different in kind from judicial functions, administrative decision makers are not usually required to give reasons for their decisions in the way courts are required”.