Case No.: IT-00-39-PT
Judge Alphons Orie, Presiding
Judge Amin El Mahdi
Judge Joaquín Martín Canivell
Mr. Hans Holthuis
20 January 2004
Office of the Prosecutor
Mr Mark Harmon
Mr Alan Tieger
Mr Nicholas Stewart
Ms Chrissa Loukas
1. Procedural History
2. Applicable Provisions
3. Standard of Review
4. Error and Unreasonableness in Registrar’s Decision
4.1 The Complainant’s “household”
4.2 Land and house at 31A Zabrde, Novi Grad, Bosnia-Herzegovina
4.3 Plots 33 and 67 in Rajlovac, including “weekend house”
4.4 Real estate in Zabrde and Rajlovac
4.5 Houses and plots in Podkoran, Pale
4.6 Summer house in Lausevac, land in Arandelovac (Serbia), and land in Igalo (Montenegro)
4.7 Sarajevoinvest company
4.8 Company MKM Krajina, Pale
4.9 Opel Corsa
4.10 House on Romanijska 75, Pale
4.11 Vehicles used for investigative work
1. On 12 June 2003 the Registrar 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 (“the Tribunal”) issued a “Decision Pursuant to Article 18(A)(ii) of the Directive on the Assignment of Defence Counsel” (“the Registrar’s Decision”) concluding that Momcilo Krajišnik (“the Complainant”)1 is able to contribute $12,970 per month to the costs of his defence over the 48-month period over which his trial is expected to run. This figure represents 40 percent of the Complainant’s so-called “disposable monthly income” over the same period, as estimated by the Registrar (the term “asset base” will be preferred to the Registrar’s term “disposable income”). The sum of $12,970 is not sufficient to cover the monthly cost of the Complainant’s defence during the trial phase, which according to the Registrar’s schedule of fees for cases of this complexity (category 3) is set at $40,150 per month. Thus the effect of the Registrar’s Decision is to declare the Complainant partly indigent for the purposes of legal aid, to deduct from the first 12-month allotment of $481,860 which the Complainant would have received for his defence had he been declared indigent the amount of $155,640 ($12,970 over 12 months), and to calculate the monthly defence allotment and stipend accordingly.2
2. On 8 July 2003 this Trial Chamber (“the Chamber”) was seized of a brief “Motion for an Order Setting Aside a Certain Decision of the Registrar Dated June Pursuant to the Provisions of Articles 13 and 18 of the Directive for the Assignment of Counsel ” (this and subsequent Defence submissions were signed by the Complainant himself) requesting the Chamber for the titular order and to declare the Complainant fully indigent. This was followed by the so-called “Appeal Against the Registrar’s Decision Pursuant to Article 18 (II) of the Directive on Assignment of Counsel”, filed in English translation on 15 July 2003, a long document with many appendices. (These filings will be referred to, respectively, as “the Motion” and “the Reasons”.)
3. The Motion, and of course the subsequent Reasons, failed to meet the two-week deadline for motions of this kind.3 The Chamber will nevertheless deal with the matter because at the time the Motion was filed the Complainant’s counsel were in the process of being replaced. The unusual circumstances constitute “good cause” for a relaxation of the deadline, within the meaning of Rule 127 of the Tribunal’s Rules of Procedure and Evidence (“the Rules”).4
4. According to the Complainant’s Reasons, the Registrar’s Decision rests on “incorrect content”. The Complainant alleges that the Registry investigator’s reports, on which the Registrar’s Decision is based, is “material that either he [the investigator] does not realise is wrong or he intentionally kept quiet about it because the false information he ‘came up with’ suits him.” The Complainant claims to have “no funds ” to expend on his defence.5 The detail of the Complainant’s submissions to the effect that the Registrar’s Decision is unreasonable will be examined below, after the Chamber’s role in the review process has been explained.
5. On 19 September 2003 the Registrar filed a “Response of the Registry to [the Complainant’s] Appeal Against the Registrar’s Decision Pursuant to Article 18(II) of the Directive on the Assignment of Counsel” (“the Registrar’s Response”), which made six concessions on the value of the Complainant’s assets and monthly household income, having the effect to lower the Complainant’s estimated “disposable monthly income” from $32,424 to $27,280, and thus to lower the Complainant’s assessed contribution to the cost of his defence from $12,970 to $10,912 per month. The Chamber regards these concessions as variations to the Registrar’s Decision, meaning that the Registrar’s Response has rendered irrelevant certain elements of the former, which therefore no longer fall for consideration.
6. On 4 November 2003 the Complainant filed in English translation his so-called “Reply to the Registry’s Objection”, meaning the Registrar’s Response.
7. At a hearing on 19 November 2003, the Complainant (assisted by new counsel) and the Registrar made oral submissions on the matter.
8. Finally, on 10 December 2003, the Complainant filed a batch of documents with an explanatory memorandum to the Chamber.
9. The Tribunal’s Statute provides that “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... 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.”6
10. The details concerning the provision of legal aid are to be found in Rule 45(A) of the Rules and in particular in the associated “Directive on Assignment of Defence Counsel” (“the Directive”). Article 6 of the Directive explains the condition for the entitlement to counsel fully paid for by the Tribunal:
A. Suspects or accused who lack the means to remunerate counsel shall be entitled to assignment of counsel paid for by the Tribunal.
B. A suspect or accused lacks the means to remunerate counsel if he does not dispose of means, which would allow him to remunerate counsel at the rates provided for by this Directive....
C. For suspects or accused who dispose of means to partially remunerate counsel, the Tribunal shall pay that portion, which the suspect or accused does not have sufficient means to pay for.
11. Article 8 of the Directive places the onus on the accused to prove lack of means. It also indicates the range of means that may be taken into account by the Registrar when assessing the accused’s request for legal aid:
A. A suspect or accused who requests the assignment of counsel must produce evidence that he is unable to remunerate counsel.
B. In order to determine whether the suspect or accused is unable to remunerate counsel, there shall be taken 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.
C. 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.
12. The accused is required to make a declaration of means,7 and the Registrar is permitted to inquire into the accused’s means.8 The Registrar must then decide how far the accused lacks means to remunerate counsel. Where the Registrar finds that the accused disposes of means to partially remunerate counsel, the Registrar will specify the legal-aid costs to be borne by the Tribunal.9 The Chamber will refer to the Registrar’s inquiry as “the Article 10 inquiry”, and to his decision as “the Article 11 decision”. The Motion challenges the accuracy and reasonableness of the inquiry and the decision.
13. The Complainant was transferred to the UN Detention Unit at The Hague on 3 April 2000. According to the Registrar’s Decision, the Registrar was not able to establish the Complainant’s indigence from the information disclosed by the Complainant at the time.10 Counsel were nevertheless assigned to the Complainant as of 24 April 2000 “in the interests of justice”.11 At the same time the Registrar continued his investigations into the Complainant’s finances.12
14. Article 18 of the Directive enables the Registrar to vary a decision on legal aid :
A. Assignment of counsel or partial remuneration of counsel and/or payment of counsel’s expenses may be withdrawn by the Registrar if:
(i) after his decision, the suspect or accused comes into means which, had they been available at the time the request in Article 7 was made, would have caused the Registrar not to grant the request;
(ii) information is obtained which establishes that the suspect or accused has sufficient means to allow him to pay for the cost of his defence.
C. The provisions of Article 13 shall apply mutatis mutandis where a suspect or accused seeks a review of the Registrar’s decision.
15. Article 13 of the Directive, referred to in the paragraph immediately above, states, in relevant part:
B. The accused whose request for assignment of counsel has been denied, may, within two weeks of the date of notification to him, make a motion to the Chamber before which he is due to appear for immediate review of the Registrar’s decision. The Chamber may
(i) confirm the Registrar’s decision; or
(ii) rule that the suspect or accused has means to partially remunerate counsel, in which case it shall refer the matter again to the Registrar for determination of which parts shall be borne by the Tribunal; or
(iii) rule that a counsel should be assigned.
3. Standard of Review
16. The Appeals Chamber has explained in detail the nature of the review which the present Motion gives rise to.13 It has termed the Article 10 inquiry an administrative fact-finding procedure.14 The Article 11 decision is an administrative decision. The standards for review of administrative decisions therefore apply:
[This] is not a rehearing.... A judicial review of an administrative decision made by the Registrar in relation to legal aid is concerned... with the propriety of the procedure by which the 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. This issue may in the particular case involve a consideration of the proper interpretation of the Directive. The administrative decision may also be quashed if the Registrar has failed to observe any basic rules of natural justice or to act with procedural fairness towards the person affected by the decision, or if he has taken into account irrelevant material or failed to take into account relevant material, or if he has reached a conclusion which no sensible person who has properly applied his mind to the issue could have reached (the “unreasonableness” test). These issues may in the particular case involve, at least in part, a consideration of the sufficiency of the material before the Registrar, but (in the absence of established unreasonableness) there can be no interference with the margin of appreciation of the facts or merits of that case to which the maker of such an administrative decision is entitled.15
17. In seeking to determine whether an accused does have the means to remunerate counsel, the Registrar – in the course of an Article 10 inquiry – does not have to satisfy himself beyond reasonable doubt. He must merely be satisfied that, more probably than not, what is asserted is true (satisfaction on the balance of probabilities ). The more serious the consequences flowing from a particular finding (the most serious being the denial of any legal aid to the accused), the more it will take for the Registrar to be satisfied that what is asserted in the Article 10 inquiry about the level of assets of the accused is more probably true than not.16
18. The Complainant bears the onus of persuasion in review proceedings. According to the Appeals Chamber:
He must persuade the Chamber conducting the review (a) that an error of the nature described Ssee aboveC 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 either 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. 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 the light of the Chamber’s decision. It 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.17
19. The Complainant had many opportunities from the moment of his arrival at the UN Detention Unit and throughout the period during which he has been receiving full legal aid to make a complete and frank disclosure of his assets and to assist the Registrar in preparing an assessment of the contribution, if any, which the Complainant is obliged to make to the costs of his defence.18 It appears that the Complainant was less than forthcoming.19 Faced with the Registrar’s Decision, the Complainant was spurred to supply information which had the effect, as mentioned earlier, of lowering his assessed contribution. He could have provided that information at an earlier stage. The Appeals Chamber has emphasized that the request for review does not trigger a rehearing. The Chamber’s role is to consider the propriety of the Registrar’s Decision (as varied by the Registrar’s Response), in reference to the principles explained above.
20. The Complainant’s basic position is that the Registrar’s Decision is erroneous and unreasonable. In the circumstances of this case the Chamber is also entitled to make its own observations on the propriety of the Registrar’s conclusions.
4.1 The Complainant’s “household”
21. The Complainant’s declaration of means, which he submitted on 20 April 2000, answered the question “With whom do you habitually reside?” in the following way: “With children and parents. Since I have neither house, nor apartment, the children sometimes live with the family that took care of them during the war.”20 On the basis of this answer the Registrar found that for the purposes of calculating the Complainant’s assets, the Complainant’s household consists of his mother (his father and wife are deceased) and his three children (aged 18, 21, and 25 at the time of the declaration).21
22. The Registrar interprets the phrase “persons with whom he habitually resides” in Article 8(B) of the Directive to denote any persons with whom the Complainant shared living arrangements and with whom he was in a close and financially interdependent relationship.22 However, it does not follow from this that all assets of all persons who are members of an accused’s household must be added to the accused’s asset base. This is especially true of household members who do not belong to the accused’s close family. But in any case the addition of assets to the asset base must be reasonable in all the circumstances. In the instant case, it is not reasonable to interpret the Directive as having the effect that the elderly mother of the Complainant must contribute to the defence of her middle-aged son out of her own assets, unless of course those assets have been assigned to her by the Complainant. The Registrar’s Response clarifies that the Complainant’s mother no longer receives a monthly income of $589 from the lease of a property belonging to a company of the Complainant and his brother.23 Were she still to have been receiving that income, it would not have been unreasonable of the Registrar to take it into account. Or if, hypothetically speaking, the Complainant had enlarged his mother’s (or anyone else’s) assets to avoid his obligations under the Directive, or in general to conceal or obfuscate the extent of his own assets, the Registrar would again have been entitled to take those assets into account. But the Registrar’s Decision is unreasonable insofar as it adds to the Complainant’s asset base those assets of the Complainant’s mother which, for example, she inherited from her late husband and which are not in the form of a monthly income absorbed into household outlays.
23. The Complainant does not dispute that his daughter’s monthly salary is $589.24 It was not unreasonable of the Registrar to take this into account, given that the daughter forms part of the Complainant’s household.
4.2 Land and house at 31A Zabrde, Novi Grad, Bosnia-Herzegovina25
24. It is not disputed that the Complainant owns the above property,26 although what this means in practical terms is a question the Chamber will return to. The Registrar claims that the property’s combined value is $164,123.27 This estimate is based on an expert report produced by the Complainant himself.28 The expert, who conducted an on-site inspection, estimated the value of the top three floors of the house at $295 per square metre. He gave a lesser value for the basement. This was accepted by the Registrar. The Registrar also accepted the expert’s measurement of the floor area of the house as being 460 square metres. As to the value of the land not including the surface of the house, the Registrar accepted the expert’s differential valuation of the orchard and field, at $15 per square metre, and of the asphalted area, at $50 per square metre.29
25. The Complainant claims that the expert “applied ‘hypothetical’ prices which are not used for purchases and sales and which at this moment are almost 100% higher than the market prices.”30 Moreover : “It is essential to understand that most of what the [expert] report contains is correct, except that the price of a square meter of land and residential space was inaccurately applied.”31 The Complainant referred to his Reasons, wherein he submitted “a number of advertisements on the basis of which, by making a comparison with the houses which were offered for sale, the price of one square metre of residential space and the price of my house as part of my property can be established.”32 The Chamber is not persuaded that the Registrar had any material before him supporting the truth of the Complainant’s first two claims. As for the advertisements, it was not unreasonable of the Registrar to place less weight on them than on the expert report, which dealt specifically with the property in question.
26. In relation to the Complainant’s so-called weekend house (see 4.3 below), the Registrar’s Decision said that it, and the surrounding structures, were not evaluated because they were illegally built and are not mentioned in any official document.33 The source seems to be a claim of legal title by a company named UPI Butmir.34 In his statement of claim to the municipality of Novi Grad, dated 1 July 1997, the “Director” of UPI Butmir maintained that during the “aggression” against the Republic of Bosnia-Herzegovina the Complainant built a residential building (the weekend house) on land owned by UPI. This document was sent to the Registrar under cover of a letter by the government of Bosnia-Herzegovina dated 9 May 2002. Also attached was a letter dated 30 April 2002 from the Chief of the municipality of Novi Grad stating that “No decision was rendered regarding the request of UPI” concerning the weekend house.35 The letter from the Municipal Chief mentions also the house at 31A Zabrde. It refers to a decision of the so-called Secretariat for Reconstruction and Development, which on 20 June 1997 “declared the residential building [31A Zabrde] temporarily abandoned and placed it under the temporary administration of the municipality as of 15 November 1996. The building in question was not allocated for use to any third party by the municipality, and [as at] the date this information is being sent, the owner had not addressed a request for its return to his ownership.” In fact, while the building may not have been “allocated”, it had become, according to the expert who made the on-site inspection, the residence of displaced persons “from Rogatica and Zvornik”, who had made the premises “relatively adequate for living”, fitting doors, windows, kitchen and bathroom components, etc.36 The government’s cover letter of 9 May 2002 reiterates the Municipal Chief’s submissions, but adds that the house at 31A Zabrde is not mentioned in the title deeds, which “implies a possibility it was built without a building permit”.37 This means, it is reasonable to assume, that it might have been built illegally, at least from the point of view of the current authorities.
27. The Registrar’s only comment on this matter is that “there are no legal or factual reasons why the [Complainant] and his immediate family could not have free use of their property (sell, hire, reconstruct or use).” This repeats a concluding paragraph to the government’s aforementioned cover letter. Needless to say, the critical question is not whether the Complainant can reconstruct or use the house, but whether he can sell it or mortgage it or lease it in order to raise money for his defence. The Registrar discounted the weekend house because of the possibility that it was illegally built. It is not clear why he did not also discount the house at 31A Zabrde. If, according to the government, there is a possibility that it too was illegally built, the Complainant’s title to the house is questionable. With questionable title the Complainant would stand little chance, if any, of sale or mortgage. The Registrar was also aware that displaced persons had moved into the house and had made improvements, of a sort. Renting out a house that has been occupied over an undetermined period by displaced persons could prove challenging, to say the least. And finally the Registrar was aware that the municipal authority had declared the whole property temporarily abandoned and had taken it under its “temporary control”. It is not clear what this means, exactly, although according to the Municipal Chief, the Complainant would at least be expected to submit “a request for its return to his ownership”. Moreover: “The building in question was not allocated for use to any third party by the municipality” – which could mean that the municipality is entitled to take such action if it so decides. The Complainant is under the impression that he would have to pay a tax in order to acquire a retrospective building permit.38 He apparently wrote to the municipality of Novi Grad on 21 June 2003 demanding that property registered in his name be returned to him.39 It is indeed his duty to take all possible steps to clarify the status of his assets in order for him to comply with his obligations under the Directive.
28. It follows from the above considerations that in the light of all the material the Registrar had before him it was unreasonable of him to conclude that “there are no legal or factual reasons why the Complainant and his immediate family could not have free use of their property.” The Chamber reiterates that the more serious the consequences flowing from an Article 11 decision, the more it will take for the Registrar to be satisfied about the probable truth of what is asserted in the Article 10 inquiry about the level of an accused’s assets. The Complainant’s trial is due to start shortly and any reduction in legal aid will immediately affect his ability to mount a defence. The Complainant seems to have little prospect of cashing in on the 31A Zabrde property (house and land) by any method in the near future. While the Registrar’s assessment of the value of this property is not itself unreasonable, there was insufficient basis for him to treat it as “disposable income” justifying an immediate reduction in legal aid.
29. Clearly the Complainant has a legal interest in 31A Zabrde, and clearly the property is valuable. The Complainant acknowledges the legal interest and as well a certain value. But the Registrar is entitled to add the value to the Complainant’s asset base for the purposes of an Article 11 decision only if it is reasonable to do so. The Chamber is not satisfied that the Registrar properly directed himself on this point.
4.3 Plots 33 and 67 in Rajlovac, including “weekend house”
30. The Registrar based his assessment of the total surface area of the two plots on the cadastral Occupancy List no. 157/10 of municipality of Rajlovac (28 July 1997 ). In this document, plot no. 33 is said to have an area of 7,446 square metres and plot no. 67 an area of 11,452 square metres.40 In an interview with the Registrar, the Complainant apparently confirmed that he owns the two plots.41 (However, the Complainant has produced a decision by the Rajlovac municipal assembly dated 17 September 1994 which shows that the Complainant’s father acquired plots 33 and 67 in an exchange arrangement with the municipality, and that at that time the plots measured 5,045 and 245 square metres, respectively. The Registrar regards his own sources as more reliable.42) The Registrar based his calculation of the value of the plots on a 27 June 2002 decision establishing the level of government compensation for building land for the year 2002. He categorized the plots as building (not agricultural) land because of the buildings they contained 43 and because the plots were classified as building land in the Occupancy List. He “conservatively” derived the square-metre value of the plots from the least expensive category given in the aforementioned decision, namely 21.98 KM (convertible marks) per square metre.44 The resulting value of (7,446 + 11,452) x 21.98 = 415,378 KM ($244,677) was added by the Registrar to the Complainant’s asset base.
31. The Registrar in his Response acknowledges that the decision of 27 June 2002 has been superseded by a decision by the same authority of 26 March 2003, produced as an attachment to the Complainant’s Reasons.45 There the compensation value for land of the relevant kind is given as 12.23 KM per square metre. It would seem, then, that the Registrar overvalued the plots by using information which was outdated at the date of the Registrar’s Response, which for the purposes of this review is the critical date. The Registrar’s Response denies that the plots were overvalued, for two reasons. First, it claims that a contract supplied with the Reasons shows that the area of the plots acquired by the Complainant’s father was larger than the Registry’s estimate. This is true, although the difference is 1,833 square metres and not 9,833 square metres as the Registrar states.46 Second, the Response claims that the expert report on the Zabrde land and house (see above) “estimates the price in Zabrde Rajlovac for fields and orchards as being 25 KM” per square metre.47 This is not correct. The report nowhere indicates that that price applies to the Rajlovac area and not just to the property in question.
32. While it remains unclear why there is a difference of 1,833 square metres between the Occupancy List plots and the plots referred to in the contract, the Registrar would have been expected,48 in view of the uncertainty, to take the lower figure and apply the value given in the most recent compensation decision. The margin of appreciation to which he is entitled does not permit him to exclude relevant material, such as the 26 March 2003 decision.
33. The question remains whether the Registrar had a sufficient basis to treat the Rajlovac plots as “disposable income” for the purposes of an immediate reduction in legal aid. According to the Municipal Chief’s letter dated 30 April 2002, plot no. 67, on which the weekend house was built, was declared temporarily abandoned and was placed under the temporary administration of the municipality on 11 June 1996.49 The letter refers as well to UPI’s claim to the buildings (see above), but also, it seems, to the land.50 The letter from the government of Bosnia-Herzegovina, under whose cover the Municipal Chief’s letter was transmitted to the Registrar, states that the weekend house structures “were built in the course of the aggression on the land that was owned by Poljoprivredni kombinat” (elsewhere translated as the Agricultural and Industrial Complex, which may or may not be related to UPI).51 The government adds: “The Municipality did not allocate the real estate to a third person. The proprietor did not ask for the restitution of property Sas ofC 30 April 2002 inclusive.” As noted by the Chamber above, this language suggests two things : that the municipality could decide to give away the real estate – which has been declared temporarily abandoned – to someone else; and that as the matter stands the Complainant would have to make an application to the municipality for restitution of his property (which he claims to have done).
34. The Chamber finds that in the light of all the material before the Registrar it was not reasonable to conclude that there are no legal or factual reasons why the Complainant and his immediate family could not have free use of the Rajlovac plots, at least in the short run. The Registrar does not appear to have taken into account the fact that his decision calling for an immediate reduction in the Complainant’s legal aid counts as “disposable income” a property that may not be disposable in the short term.
4.4 Real estate in Zabrde and Rajlovac
35. This land belonged to the Complainant’s father who it seems died intestate. The Complainant is therefore considered to have inherited one third of the property, with the remainder going in equal shares to his mother and brother.52 The Registrar based his assessment of the property’s total surface area on the Rajlovac municipality’s Abstract from Land Register 631/01, in which three “fields” owned by the Complainant’s father are said to measure 7,203 square metres, and on Occupancy List no. 205/04 which lists 11 plots – fields, orchards, and meadows – covering a combined area of 26,257 square metres.53 The Complainant does not contest these figures.54
36. The Registrar based his calculation of the value of the land on the 27 June 2002 decision (see 4.3 above) establishing the level of government compensation for building land. (It is not clear why the Registrar classified the land as building land.55) The resulting value is (7,203 + 26,257) x 21.98 = 735,451 KM ($433,215).56 For the reasons given in 4.3, above, the Registrar should have taken the per-unit value (12.23 KM) from the decision on compensation dated 26 March 2003. It is no answer to say57 that the expert who gave the valuation on 31A Zabrde concluded that the cost of fields and orchards was 25 KM per square metre, because that valuation was limited to that property. Moreover, the land under consideration here consists not only of fields and orchards but also of “meadows”.
37. The Complainant through his former counsel said that squatters were occupying the land, but did not provide supporting evidence.58 At the time of the Registrar’s Decision there was no proof of an obstacle in the way of sale, mortgage, or lease.
4.5 Houses and plots in Podkoran, Pale
38. The Registrar accepted a valuation of this property, which was commissioned by the Complainant, putting its value at 364,757 KM ($214,859).59 The only question then is the level of the Complainant’s debt on the property. There is no dispute that he is liable to repay 138,478 KM ($81,570) to the so-called Direction for Stock Control in Pale.60 This leaves $133,289. Finding no other debt,61 the Registrar has added this amount to the Complainant’s asset base. The property does not appear to be mortgaged to the Direction for Stock Control.
39. The Complainant provided evidence from July 1998 that an agency calling itself the Directorate for Renewal and Reconstruction of Serbian Sarajevo funded construction work on the house, these funds being in the form of a loan.62 However, in September 2002 the agency’s director informed the Registrar that the Complainant is not liable to the Directorate for the loan. The notes from the interview make the director sound less than categorical on this point,63 but it was open to the Registrar to accept this as better evidence than that supplied by the Complainant. It was also open to the Registrar to find that the Complainant has not demonstrated any other debts on the property.
4.6 Summer house in Lauševac, land in Arandelovac (Serbia), and land in Igalo
40. The Complainant’s objections in relation to these three properties (the combined value of which is $44,139, according to the Registrar) are unsupported. It appears that the Registrar, in deciding their value, took into account relevant material, did not take into account irrelevant material, and reached a reasonable conclusion. In relation to the Igalo property the Complainant stated that he would prefer to sell it to pay for his family’s visits to The Hague.64 This suggests that he would have little trouble disposing of that plot of land at least. However, the sum involved is very small.
4.7 Sarajevoinvest company
41. The Registrar found that the Complainant has a 50 percent interest in the company Sarajevoinvest. Its total value in 2002 was 681,329 KM ($401,334), as estimated by the Registrar.65 The Registrar referred to a valuation by a licensed assessor commissioned by the Complainant, giving the net value of the company as 62,826 KM ($37,007) as at 31 December 1999 (business assets, $801,509, minus liabilities, $764,502). According to the assessor, the company was established in July 1998 by the Complainant and his brother and became operational in 1999. Its first investment was in a petrol station.66 Clearly only limited weight can be given to the assessor’s report, since it stops at the end of 1999.67 The Registrar obtained more recent documentation from the company’s acting director and its accountant, in particular the list of fixed assets and their values as at 31 December 2001. After allowing for depreciation in 2002, subtracting a business loss in 2002 of $19,659,68 and finding that certain bank loans had been paid off or did not exist, the Registrar settled on the abovementioned figure of $401,334,69 95 percent of which is attributable to the value of the petrol station building.70
42. The Registrar recognizes that there exists a statement of debt of 70,103 KM ($41,294) against Sarajevoinvest to the benefit of the Directorate for Renewal and Reconstruction. The Registrar submits, however, that according to that agency’s director “this amount has not been paid and the contract is not enforceable”.71 This conveys doubt about the continuing reality of the debt. It was not unreasonable of the Registrar therefore to dismiss the alleged debt.
43. The Registrar also recognizes that the balance sheet for the second half of 2002 shows that Sarajevoinvest had loans amounting to 53,400 KM ($31,455).72 This relates to pre-payments made by the lessee of the petrol station for oil derivatives. The Registrar concludes that the amount would have been repaid to the lessee through the regular sale of oil derivatives at the petrol station. While the lessee may still have a claim on the company,73 there is no proof of any claim made, so on the balance of probabilities it was not unreasonable of the Registrar to dismiss this alleged liability.
44. Finally, the Registrar recognizes that a contract dated 24 September 1999 exists between the Complainant, his brother, and Milena Kusmuk, the acting director of Sarajevoinvest.74 According to the contract, Ms. Kusmuk acquired a 20 percent share in the company for 80,000 German marks ($47,124), to be paid within two years. In the Registrar’s opinion the only evidence before him that the money was paid is the word of Ms. Kusmuk, who said in an interview that the money was expended in cash on small non-invoiced contracts for work on the foundations of the petrol station.75 The Registrar prefers the evidence of the books of Sarajevoinvest, which do not show any payments made by Ms. Kusmuk, and also the evidence of the licensed assessor who found that, as at the end of December 1999, the company had just two shareholders.76 The Registrar has not been shown to have acted unreasonably by preferring this evidence.
45. The assessor’s report shows Sarajevoinvest having liabilities amounting to $764, 502 by the end of 1999. Two loans included in this figure amounting to 80,000 KM ($47,124)77 were followed up by the Registrar and found to have been settled.78 The Complainant provided a balance sheet as at 31 December 2002 indicating that short-term liabilities were down to 468,502 KM ($275,970).79 A financial statement also supplied by the Complainant shows a business profit of 118,507 KM ($69,806) for 2001, and a business loss of 33,375 KM ($19,659) for 2002 (which the Registrar accepts).80 It was not unreasonable of the Registrar to disregard alleged liabilities which were not invoiced or which are not specifically accounted for in the company’s books.
46. Should the Complainant be able to produce evidence of a credible claim existing against Sarajevoinvest (together with an explanation of why he was not able to obtain it at an earlier date), the Registrar will no doubt consider it.
4.8 Company MKM Krajina, Pale
47. MKM Krajina was established in March 1998 as a joint stock company.81 In September 2002 the Registrar obtained financial information on the company, including the balance sheet for the first six months of 2002, from its accountant, and at around the same time the Complainant submitted assessments of the value of certain buildings in a report prepared by a construction expert in May 2001.82 The Registrar’s conclusion is that the total value of the company as at the end of December 2002 was 851,025 KM ($501,293).83 This comprises land worth 268,950 KM, movable assets worth 241,452 KM (after depreciation ),84 and unfinished motel buildings valued by the construction expert at 498,864 KM (the motel is unfinished because the company ceased operations upon the arrest of the Complainant in April 2000).85 The Registrar points out that the book value of the unfinished buildings is almost three times higher than their assessed value.86 He nevertheless took the lower value. On the debit side the Registrar counted an outstanding bank loan of 105,305 KM,87 and a business loss for 2002 of 52,937 KM.88 The assets of the company are otherwise, according to the Registrar, free from any pending liabilities,89 and of the company’s total of 9 shares the Complainant can “freely dispose” of 5 and 2/3 shares, namely his own share, 2/3 of his father’s share (1/3 each for the Complainant and his mother), his mother’s whole share, and the three shares of his three children. The Complainant’s “disposable income” from MKM Krajina is thus said to be (5.66../9) x 501,293 = $315,629.90 However, it is not clear that the Complainant’s mother and father did not contribute financially to the establishment of the company and that they were simply assigned their shares by the Complainant. For the reasons given in 4.1, above, the Registrar should not have added the Complainant’s mother’s share (i.e. 1 and 1/3 shares) in MKM Krajina to the Complainant’s asset base.
48. The Registrar, in estimating MKM Krajina’s value, did not take into account operational liabilities, such as trade debts, unless they could be substantiated. He acknowledges that there exists a statement of debt of 206,345 KM ($121,547) against MKM Krajina to the benefit of the Directorate for Renewal and Reconstruction. According to the Registrar, who accepts the opinion of the Directorate’s director, there are, however, “no remedies available for recovery through a court order due to the fact that the contracts are poorly drafted with no indication of time limits. It is thus very unlikely that any of the outstanding debts, which according to the balance sheet amount to 475,225 KM ($279,929), will ever be claimed and/or repaid.”91 This casts doubt on the continuing reality of the debt.
49. For the reasons given also in 4.7, above, it was not unreasonable of the Registrar not to take into account MKM Krajina’s alleged liabilities.
4.9 Opel Corsa
50. One of the Complainant’s sons, presently a student, owns a 1993/4 Opel Corsa valued at $1,152. The Registrar has added this value to the Complainant’s asset base, for the reason that the son is a household member.92 The Chamber does not agree that it is reasonable to add a cheap and ageing vehicle in the personal everyday use of a household member to the Complainant’s asset base.
4.10 House on Romanijska 75, Pale
51. This apparently modest house (not much more than 100 square metres) is where three members of the Complainant’s household currently reside. It is owned by a family friend who charges no rent. The Registrar believes that this privilege is covered by Article 8(C) of the Directive (reproduced above).93 The saving of approximately $200 per month on accommodation (the Registrar has mistakenly used $230 per month in his final calculations94) is an “income asset”, presumably in view of the fact that the monthly allowance of $563 allocated by the Registrar to the Complainant’s household of four in the formula used to calculate the “disposable monthly income” includes a component for accommodation.95
52. However, the Registrar’s interpretation of the Directive on this point is questionable. Article 8(C), unlike Article 8(B), does not mention the persons with whom the Complainant “habitually resides”. Prima facie, if the Complainant’s household members can improve their lifestyle by finding a way to save on rent, the saving cannot be taken away from them to enlarge the Complainant’s asset base. It was unreasonable of the Registrar to construe the Directive in the way he did without an argument to address, and dispose of, the strict interpretation of the provision.
53. The Chamber takes this opportunity to note that the average monthly expenditure figure of $563 was set in September 2002. A more up-to-date official estimate should be used, if one has been published, or otherwise account should be taken of inflation. Another point is that this figure is meant to reflect the needs of the average family, but not of the average family with a member detained in the Hague. The Tribunal does not normally finance family visits to the accused in the Hague. The Registrar should consider enlarging the average monthly expenditure allowance to take account of the cost of visits according to criteria which the Registrar considers reasonable.
4.11 Vehicles used for investigative work
54. The Complainant owns three vehicles, registered in the name of Sarajevoinvest, which are being used by his defence team to carry out investigations. Their estimated value is $21,275.96 The Complainant has not demonstrated that it was unreasonable of the Registrar to add this value to the Complainant’s asset base.
55. It should be clear from the analysis in the previous section that the incidence of error and unreasonableness in the Registrar’s Decision is such as to justify an order quashing the Registrar’s Decision. The Registrar should reconsider his position in the light of the Chamber’s decision.
FOR THE FOREGOING REASONS,
PURSUANT TO ARTICLE 18(C) OF THE DIRECTIVE ON ASSIGNMENT OF DEFENCE COUNSEL:
ALLOWS the Motion in part;
QUASHES the Registrar’s Decision.
Done in English and French, the English text being authoritative.
Dated this 20th day of January 2004
At The Hague
[Seal of the Tribunal]