The Prosecutor v Pasko Ljubicic
Case No. IT-00-41-PT
REVISED DECISION
THE DEPUTY REGISTRAR,
NOTING the Statute of the Tribunal as adopted by the Security Council under Resolution 827 (1993), and in particular Articles 17 and 21;
NOTING the Registry Decision of 17 December 2004 ("Registry Decision") which found Pasko Ljubicic ("Accused") partially indigent and capable of contributing US$31,503 to the cost of his defence;
NOTING the supporting documentation to the Registry Decision filed confidentially and ex parte, in particular Appendix 1;
NOTING that the Registry has since 15 December 2004, adjusted the formula used to determine an accused’s contribution to the cost of his or her defence; that the adjusted formula results in a less onerous contribution by the Accused; and that therefore there exists good cause to make a re-determination;
HEREBY ISSUES the following Revised Decision and attaches a Revised, Confidential and ex parte Appendix 1:
NOTING the Rules of Procedure and Evidence as adopted by the Tribunal on 11 February 1994, as subsequently amended ("Rules") and in particular Rules 44 and 45;
NOTING the Directive on 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) and 18;
CONSIDERING that on 22 November 2001, the Accused submitted his first declaration of means, claiming legal aid on the basis that he did not have sufficient means to remunerate counsel and requested that the Registry assign Mr Tomislav Jonjic, attorney at law from Zagreb, as lead counsel;
CONSIDERING that on 5 December 2001, the Registry assigned Mr Jonjic as lead counsel to the Accused for a temporary period of 120 days and that on 4 April 2002, the Registrar assigned Mr Jonjic permanently on condition that the Accused submit conclusive financial documentation to the Registry;
CONSIDERING that on 13 March 2003, the Accused submitted his second declaration of means and that the Registry subsequently issued a Report on the Financial Status of the Accused ("Registry Report") which found that the Accused was capable of contributing to the cost of his defence;
CONSIDERING that on 19 February 2004, the Accused submitted his third declaration of means, pursuant to Article 7(C) of the Directive;
NOTING the supporting documentation filed confidentially and appended to this Decision;
Registry Policy
NOTING that in May 2004, the Registry adopted a new policy in accordance with Article 8 of the Directive for determining whether an accused has sufficient means to remunerate counsel ("New Registry Policy");
NOTING that the New Registry Policy was designed to apply to new cases initiated after the adoption of the New Registry Policy and, if the New Registry Policy is financially more advantageous for the accused, to cases in which the Registry had made an earlier determination as to the accused’s level of indigence;1
CONSIDERING that application of the New Registry Policy to the current financial status of the Accused would be less financially advantageous for the Accused than application of the previous Registry formula used to calculate an accused’s contribution to the cost of his defence;2
NOTING that the Previous Registry Policy was established in accordance with Article 8 of the Directive and provides that all the assets of an accused are tallied; the average expenditure for a household is then deducted; and the resulting figure is held against a schedule of reasonable contributions to determine the level of indigency;
NOTING that Article 8(B) and (C) of the Directive respectively provide:
(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, provided that it is reasonable to take such means into account;
(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;
CONSIDERING that the Accused has a spouse and daughter who reside in Bosnia and Herzegovina ("BiH");
CONSIDERING further that the Registry considers the Accused’s spouse and daughter to be persons with whom the Accused habitually resides as within Article 8(B) of the Directive, and the Accused has offered no evidence to suggest that he would not reside with them were he not in custody;
CONSIDERING that the Registry recognizes that under the marital property regime of BiH where the Accused and his spouse are married, the assets acquired during the marriage as well as incomes derived from that property constitute marital property, owned jointly by the Accused and his spouse, and may thus be considered for the purpose of calculating the Accused’s contribution to the cost of his defence;
CONSIDERING that for the purpose of calculating the Accused’s level of indigence, the Registry has examined the following assets which are currently in possession of the Accused and his spouse, in accordance with Article 8 of the Directive: income and bank accounts; real property, including a house in Croatia, furnishings in the house in Croatia, land in BiH and an apartment in BiH; and an automobile;
Income and Bank Accounts
NOTING that according to Article 8(B) of the Directive, the Registry may include in an accused’s assets, his direct income and assets, as well as those of his spouse and the persons with whom he habitually resides;
CONSIDERING that the Accused receives no employment income and has received irregular financial assistance since in detention;
CONSIDERING that the Accused maintains a bank account at the United Nations Detention Unit ("UNDU") of which a percentage represents United Nations allowances to the Accused which may not be considered income within Article 8(B) of the Directive;
CONSIDERING that the balance in the Accused’s bank account as of the date of this decision is negligible;
CONSIDERING that the Accused’s spouse is employed and earns a monthly salary;
CONSIDERING that the combined income expected to be received by the Accused, his spouse and daughter from the date of this decision until the conclusion of the estimated period in which the Accused will require representation before the International Tribunal is included in the Accused’s assets;
Real Property
NOTING that the Registry may include in the Accused’s assets any real property of the Accused as well as that of his spouse and persons with whom he habitually resides;
CONSIDERING that the Accused owns a house in Croatia which is registered in the name of the Accused and which may be rented out in part, although the Registry has obtained no evidence that the Accused intends to lease the property in the future;
CONSIDERING that the Accused and his spouse own home furnishings in the house in Croatia;
CONSIDERING that the Registry may exclude from an accused’s assets the value of the furnishings in the real property owned by the Accused unless those furnishings exceed the reasonable needs of the Accused, his spouse and persons with whom he habitually resides;
CONSIDERING that the furnishings in the Accused’s house in Croatia do not exceed the reasonable needs of the Accused, his spouse and daughter and are therefore not included for the purpose of determining the Accused’s contribution to the cost of his defence;
CONSIDERING that the Accused is the registered owner of inherited land in BiH;
CONSIDERING that the Accused’s spouse is the registered owner of an apartment in BiH where she currently resides with the Accused’s daughter;
CONSIDERING that the apartment was gifted to her by the Accused’s brothers and brother-in-law, and as such, the Registry considers the apartment and its contents to fall outside the marital property regime of the Accused and his spouse;
Automobile
CONSIDERING that the Accused’s spouse is the registered owner of an automobile, purchased new in 2001 and that the automobile is considered joint marital property under the marital property regime of BiH as it was acquired during the marriage;
The Formula
CONSIDERING that the assets to be included in the calculation of the Accused’s contribution to the cost of his defence are the house in Croatia, its furnishings, the land in BiH and the automobile; and that the income to be considered includes the spouse’s income exclusively;
NOTING that the Registry developed a formula under the previous policy, which is intended to ensure that partially indigent accused contribute payment for a certain amount of working hours commensurate with their income, which does exhaust all means of an accused’s household. The Registry takes the view that a financial contribution of an accused to his defence must neither result in a loss of all liquid means and assets by the Accused nor in a lack of support for dependants. The formula is as follows:
| CAV + |
S(NI- AE x M - EE) x TC |
|
| 4 |
||
|
|
T |
= D |
Where:
CAV represents the total value of the assets available to the Accused and members of his family with whom he habitually resides.
NI represents the monthly income of the members of the Accused’s family with whom he habitually resides.
AE represents the average monthly expenditures for a four-person household in Croatia, according to government statistics. This includes expenses food and beverages, accommodation, transportation, communication, clothing, education, culture, hygiene and healthcare.
M represents the number of members of the Accused’s household, including the Accused.
EE represents any additional living expenses incurred by the Accused’s household not foreseen in the AE index. In this case there are no ($0) extra expenditures.
T represents the estimated number of months in which the Accused is expected to require legal representation before the Tribunal as of the date he applied for legal aid.
D represents the Accused’s disposable means per month over the period in which he is expected to require representation before the Tribunal.
Subsequently, the resulting figure is held against the schedule of reasonable contributions below which operates much like a taxing system to determine the Accused’s contribution per month, to the costs of his defence:
| Disposable means per month in Euros (€) |
Percentage of the disposable means to be contributed to the cost of the defence per month for a given period of time (in %) |
| 0 - 1,000 |
10 |
| 1,001 – 5,000 |
20 |
| 5,001 – 10,000 |
30 |
| over 10,000 |
40 |
Contribution of the Accused
CONSIDERING that in applying the schedule, the Accused must contribute an amount equal to 20% of his disposable means per month to the cost of his defence;
DECIDES in light of the foregoing and in accordance with Article 11(A)(ii) of the Directive, that the Accused shall contribute US$29,221 which represents the total contribution of the Accused for the remainder of the period in which he will require legal representation before the Tribunal;
DECIDES further, that with the exception of the Accused’s contribution of US$29,221, the expenses referred to in Articles 22, 26 and 27 of the Directive shall be borne by the Tribunal;
Assignment of counsel
CONSIDERING that according to the information received by the Registry, the Accused is partially indigent and has means to contribute to the cost of his defence;
CONSIDERING further the right of the Accused to an effective defence before the International Tribunal;
DECIDES in light of the foregoing, without prejudice to Article 18 of the Directive and pursuant to Article 11(A)(i) of the Directive, to confirm the permanent assignment of Mr Tomislav Jonjic as lead counsel and Nika Pinter as co-counsel as of the date of this decision.
John Hocking
Deputy Registrar
Dated this 28th Day of February 2005
At The Hague,
The Netherlands.