Case No. IT-04-82-PT

Prosecutor v. Johan Tarculovski

THE DEPUTY REGISTRAR,

NOTING the Statute of the Tribunal as adopted by the Security Council under Resolution 827 (1993), and in particular Article 21 thereof;

NOTING the Rules of Procedure and Evidence as adopted by the Tribunal on 11 February 1994, as subsequently amended (“Rules”), and in particular Rule 45 thereof ;

NOTING the Directive on the Assignment of Defence Counsel as adopted by the Tribunal on 28 July 1994, as subsequently amended (“Directive”), and in particular Articles 6, 7, 8, 10, 11(A)(ii), 18 and 23(C) thereof;

CONSIDERING that Mr Johan Tarculovski (“Accused”) was transferred to the seat of the Tribunal on 16 March 2005 and that his initial appearance was held on 21 March 2005;

NOTING that the Accused chose to represent himself at his initial appearance ;

NOTING that on 29 March 2005, the Accused submitted a Declaration of Means pursuant to Article 8 of the Directive and requested the assignment of Mr Antonio Apostolski, attorney at law from Skopje, Macedonia, pursuant to Rule 45 of the Rules , on the basis that he did not have sufficient means to remunerate counsel;

CONSIDERING that Mr Apostolski is a member of the Association of Defence Counsel and is currently on the Rule 45 list of counsel eligible for assignment to indigent suspects and accused;

CONSIDERING that the Registry has examined the information provided by the Accused in his declaration of means and has completed an inquiry into the Accused’s means pursuant to Article 10(A) of the Directive;

CONSIDERING that the Accused was given an opportunity to comment on the findings of the Registry’s inquiries into his means before the Registry made its final determination on his ability to remunerate counsel;

CONSIDERING that pursuant to Article 8(B) of the Directive, the eligibility of an accused for legal aid shall be determined by taking 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…”

CONSIDERING that pursuant to Article 8(C) of the Directive, “[a]ccount 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”;

CONSIDERING that the Registry determines the eligibility of an accused for legal aid in accordance with Article 8 of the Directive and the ‘Registry Policy for Determining the Extent to which an Accused is able to Remunerate Counsel’ (“Registry Policy”), attached as Appendix II to this Decision;

NOTING that under the Registry Policy, the Registry first determines the disposable means of an applicant for legal aid and then deducts from the disposable means, the estimated living expenses of his family and dependents during the estimated period in which the applicant will require representation before the Tribunal - the amount remaining being the contribution to be made by the applicant to the costs of his defence;¹

CONSIDERING that the Accused’s spouse currently resides in a rented apartment in Skopje, Macedonia (“Apartment in Skopje”);²

CONSIDERING that the Accused’s spouse has entered into an agreement to purchase another apartment in Skopje, Macedonia, the construction of which is to be finalized by the end of November 2006 and that the Registry considers this apartment to be the future principal family home (“Principal Family Home”);³

CONSIDERING that the purchase price of the Principal Family Home will be paid in monthly installments using the Accused’s funds;⁴

CONSIDERING that the equity in the Accused’s Principal Family Home does not exceed the reasonable needs of the Accused, his spouse, and the persons with whom he habitually resides and therefore, pursuant to Article 8(B) of the Directive, the equity therein is not included in his disposable means;⁵

CONSIDERING that the Accused is a co-owner of a piece of land in Ljubanci , Macedonia which is neither readily disposable, nor of significant value and therefore , pursuant to Article 8(B) of the Directive and Section 6(d) of the Registry Policy , the equity therein is not included in his disposable means;⁶

CONSIDERING that the Accused indicated in his declaration of means that he owns a house in Ljubanci, Macedonia, but further to its inquiry into the Accused’s financial means, the Registry has determined that the Accused is not the owner of the house and therefore, pursuant to Article 8(B) of the Directive and Section 5 (e) of the Registry Policy, the equity therein is not included in his disposable means;⁷

CONSIDERING that the Government of Macedonia provided the Accused with financial assistance to meet the cost of his defence and the daily expenses of his family (“Government of Macedonia Funds”) and that the Government of Macedonia Funds were deposited into a bank account held by the Accused’s spouse;⁸

CONSIDERING that the Registry is satisfied that a portion of the Government of Macedonia Funds were used by the Accused’s spouse to purchase clothing, furnishing and appliances for the Apartment in Skopje, and electronic equipment for the Accused (“Consumer Items”);⁹

CONSIDERING that the Consumer Items do not constitute readily disposable assets, therefore pursuant to Article 8(B) of the Directive and Paragraph 6(d) of the Registry Policy, the Consumer Items are not included in the Accused’s disposable means;¹⁰

CONSIDERING that the Registry is also satisfied that the Government of Macedonia Funds have been used to pay a portion of the purchase price of the Principal Family Home and that the remaining balance of the purchase price will also be paid from those funds;¹¹

CONSIDERING that the Registry deducts from the Government of Macedonia Funds , the cost of the Consumer Items and the purchase price of the Principal Family Home, and includes the remaining balance of the Government of Macedonia Funds in the Accused’s disposable means pursuant to Article 8(B) of the Directive and Section 5(d) of the Registry policy;¹²

CONSIDERING that in accordance with the Registry Policy, the estimated living expenses of the Accused and his family during the estimated period in which the Accused will require Tribunal-paid representation are deducted from his disposable means and that the Registry has included in the estimated living expenses of the Accused, as an extraordinary living expense, the rent for the Apartment in Skopje until the end of November 2006;¹³

CONSIDERING that in determining the extent to which the Accused is able to remunerate counsel, the Registry applies the formula in Section 11 of the Registry Policy, which reads:

DM – ELE = C

Where:

DM represents an applicant’s disposable means as calculated under Sections 5-8 of the Registry Policy.

ELE represents the estimated living expenses of an applicant, his spouse, his dependants and the persons with whom he habitually resides as calculated under Section 10 of the Registry Policy.

C represents the contribution to be made by an applicant to his defence.

CONSIDERING that by applying the formula DM – ELE = C, the Accused’s contribution is US$22,560 and as such he is partially able to remunerate counsel;¹⁴

CONSIDERING that as of the date of this decision, the cost of the Accused’s defence before the Tribunal at the pre-trial stage (excluding the cost of necessary Travel and Daily Subsistence Allowance) are estimated at US$162,531;

CONSIDERING that as of the date of this decision, it is not possible to estimate the cost of the Accused’s defence at the trial stage of the proceedings;

DECIDES that in light of the foregoing and in accordance with Article 11( A)(ii) of the Directive, that the Accused is partially eligible for legal aid and that he shall contribute US$22,560 to the costs of his defence;

DECIDES that with the exception of the Accused’s contribution of US$22,560 , the expenses referred to in Articles 22, 26 and 27 of the Directive shall be borne by the Tribunal;

DECIDES without prejudice to Article 18 of the Directive and pursuant to Article 11(A)(ii) of the Directive to assign Mr Antonio Apostolski as counsel to the Accused, effective as of 26 November 2005;

INFORMS the Accused and his counsel that the Accused’s contribution of US $22,560 will be deducted from legal aid allotments paid to his defence team in a manner to be agreed upon by the Registry and the Accused’s counsel.

John Hocking
Deputy Registrar

Dated this 27th day of January 2006
At The Hague,
The Netherlands.