Case No. IT-95-13/1-PT

IN TRIAL CHAMBER II

Before:
Judge Carmel Agius, Presiding
Judge Jean-Claude Antonetti
Judge Kevin Parker

Registrar:
Mr. Hans Holthuis

Decision of:
3 March 2005

PROSECUTOR

v.

MILE MRKSIC
MIROSLAV RADIC
VESELIN SLJIVANCANIN

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DECISION ON DEFENCE REQUEST FOR REVIEW OF THE REGISTRAR’S DECISION ON THE LEVEL OF THE CASE

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The Office of the Prosecutor:

Mr. Jan Wubben

Counsel for the Accused Mile Mrkšic:

Mr. Miroslav Vasic

Counsel for the Accused Miroslav Radic:

Mr. Borivoje Borovic
Ms. Mira Tapuškovic

Counsel for the Accused Veselin Sljivancanin:

Mr. Novak Lukic
Mr. Momcilo Bulatovic

TRIAL CHAMBER II ("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"),

BEING SEISED OF a "Request for Review of the Registrar’s Decision" filed on 27 January 2005 by Counsel for Mile Mrksic, Miroslav Radic and Veselin Sljivancanin ("Defence") ("Request") pursuant to Article 11, 13 and 31 of the Directive on Assignment of Defence Counsel ("Directive")¹;

NOTING the Registrar’s Decision of 11 January 2005 ("Third Registry Decision"), in which the Registrar denied the "Request for case level upgrade" filed by the Defence on 8 September 2004 and maintained the ranking of the case at the first level of complexity ("Level I");²

NOTING that, in its Request, the Defence reiterates its previous submissions and alleges that the Registrar erred in its assessment of the level of complexity of the case and its consideration of the rank of the Accused, the size of the case, its complexity, the ongoing "Ovcara Farm" proceedings before the Belgrade County Court Special War Crimes Trial Chamber and the disclosure of a substantial quantity of evidentiary material from the Milosevic case;

NOTING that, under the new regime regulating payment of defence counsel put in place for the pre-trial and trial phases on 1 January 2001, the Registry imposes a maximum allotment of working hours for a case stage depending on the complexity of the case;³

CONSIDERING that the Registrar has the primary responsibility in determining matters concerning the remuneration of counsel and that Article 22 (A) of the Directive provides that in the event of a disagreement on the maximum legal aid allotment, the Registrar makes a decision after consulting the Trial Chamber, and if necessary the Advisory Panel;

NOTING that judicial review of Registrar’s decisions on the level of complexity of the case is not provided for in the Rules of Procedure and Evidence of the Tribunal ("Rules") or in the Directive;

RECALLING however the consistent Tribunal jurisprudence with regard to remuneration of counsel according to which, where the Directive does not expressly provide for a review of the Registrar’s decision, the Trial Chamber "pursuant to its statutory obligation to ensure the fairness of the trial, is competent to review the Registrar’s decision in the light of its effect upon the fairness of the trial";

RECALLING that "[j]udicial review is concerned initially with the propriety of the procedure by which the Registrar reached the particular decision and the manner in which he reached it";⁴

CONSIDERING that the Trial Chamber was consulted accordingly at the different stages of the proceedings in this regard;

RECALLING further that an impediment on the fairness of trial has come to include situations where the Registrar has i) failed to comply with the legal requirements of the Directive; ii) failed to observe any basic rules of natural justice; iii) taken into account irrelevant material or failed to take into account relevant material or; iv) reached a conclusion which no sensible person who has properly applied his mind to the issue could have reached;

NOTING that the factors to take into consideration for the determination of the level of complexity of the case include the number and nature of counts of the indictment, the possible amendments of the indictment, the nature of preliminary motions and challenges to the Tribunal’s jurisdiction, the number of accused joined in the same case, the number of witnesses and documents involved, the geographical territory covered in the indictment, the previous ranking of the accused within the military or political hierarchy (where appropriate) and the legal issues expected to arise in the course of the trial;⁵

NOTING that the Registry, in determining the level of the case, considered the temporal and material scope of the case, the novelty of the issues raised, the number of documents disclosed thus far and the estimated number of witnesses to be called by the Prosecution and the ongoing Ovcara Farm proceedings;

NOTING further that the Registrar may, at its discretion, compensate for cases that require additional legal assistance without changing the level of complexity of the case and that this discretion was exercised with regard to Counsel for Mile Mrksic on 6 October 2003 when the Registry granted such exceptional additional allotments of counsel and support staff hours;⁶

CONSIDERING that the Defence has failed to identify where the Registry did not i) comply with the legal requirements of the Directive; ii) observe any basic rules of natural justice and; iii) take into account relevant material or where the Registry iv) took into account irrelevant material or; v) reached an unreasonable decision, and thus has failed to establish that the Registry has impeded on the fairness of the trial, the Trial Chamber will not review the Defence submissions any further;

FOR THE FOREGOING REASONS

PURSUANT TO Article 21 of the Statute of the Tribunal, Rules 54 of the Rules and Article 22 of the Directive

HEREBY DENIES the Request

Done in French and English, the English version being authoritative.

Dated this third day of March 2005,
At The Hague
The Netherlands

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Carmel Agius
Presiding Judge

[Seal of the Tribunal]