Judicial Supplement 7 - The Prosecutor v. Zoran Kupreskic, Mirjan Kupreskic, Vlatko Kupreskic, Drago Josipovic, Dragan Papic and Vladimir Santic (a/k/a "Vlado")

The Prosecutor v. Zoran Kupreskic, Mirjan Kupreskic, Vlatko Kupreskic, Drago Josipovic, Dragan Papic and Vladimir Santic (a/k/a "Vlado") - Case No. IT-95-16-T

"Decision on the Registrar's Withdrawal of the Assignment of Defence Counsel"

3 September 1999
Trial Chamber II (Judges Cassesse [Presiding], May and Mumba)

Articles 5-7, 10, 13 and 19 of the Directive on Assignment of Defence Counsel - withdrawal of assignment of counsel; burden of proof of indigency.

The burden of proof of indigency shifts depending on the stage of the procedure. At the initial stage, the burden is on the accused and, subsequently, on the Registrar.
The Trial Chamber must be satisfied that the evidence available to the Registrar before she decides to withdraw the assignment of a defence counsel is sufficient. Media reports alone are not sufficient evidence for a court of law.

The issue

By decisions of 6 August 1999, and on the basis of information obtained from the media that the accused were receiving substantial financial support for their legal representation, the Registrar withdrew the assignment of all defence counsel. She concluded that the accused were in a position to finance their own representation.1 The accused objected.2

The decision

Placing the burden of proof on the Registrar and concluding that she had failed to establish that the conditions for assignment of counsel were no longer satisfied, the Trial Chamber reversed the decisions and ordered that the assignment of the Defence counsel continue without interruption.

The reasoning

With regard to the issue of competence, the Trial Chamber asserted that it has jurisdiction to hear the objections under Articles 19(D) and 13(C) of the Directive on Assignment of Defence Counsel (hereinafter "the Directive"). The Trial Chamber held that 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 stage of the proceedings."3

Concerning the merits of the case, the Trial Chamber separated the issue of the burden of proof from that of the actual content of such proof. On the former matter, the Trial Chamber found that the burden of proof shifts depending on the stage at which the decision is to be taken. At the initial stage, the burden rests on the accused who would thus have to satisfy the Registrar that he fulfils the requirements of Article 5 of the Directive.4 After an initial showing of indigency has been made to the satisfaction of the Registrar, if she wants to withdraw the assignment of counsel, the burden is then hers.

With regard to the second issue, that is, whether the accused is still indigent, the Trial Chamber explained that it must be satisfied that the evidence before the Registrar is sufficient. In the present case, the evidence consisted of media reports. According to the Trial Chamber, though such reports "may serve as a first step to launch an investigation into the veracity of the reported facts",5 they cannot by themselves be sufficient evidence.6

________________________________________
1. Article 19(A) of the Directive on Assignment of Defence Counsel.
2. Article 19(D) of the Directive on Assignment of Defence Counsel.
3. Paragraph 3.
4. Article 5 of the Directive on Assignment of Defence Counsel: "In accordance with the facts of the individual case, a suspect or an accused shall be considered to be indigent if he does not have sufficient means to retain counsel of his choice."
5. Paragraph 7.
6. On that same day, a similar decision was rendered by Trial Chamber III in Prosecutor v. Kordic/Cerkez, IT-95-14/2-T.