Case No. IT-04-74-PT
Prosecutor v. Jadranko Prlic
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 Rules 44 and 45 thereof;
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, 8, 10, 11(A)(ii) and 23(C) thereof;
NOTING that on 5 April 2004, the day he surrendered to the Tribunal, Jadranko Prlic (“Accused”) informed the Registry that he would not apply for Tribunal legal aid and that he had retained Messrs Camil Salahovic and Želimir Par, attorneys at law from Croatia, as counsel to represent him before the Tribunal;
CONSIDERING that on 30 September 2004, the Accused submitted a declaration of means to the Registry of the Tribunal, applying for the assignment of Tribunal -paid counsel on the basis that he did not have sufficient means to remunerate counsel ;
NOTING that on 23 February 2005, the Accused informed the Registry that he had discontinued the services of Mr Par;
NOTING that on 11 April 2005, the Accused informed the Registry that he had discontinued the services of Mr Salahovic and that Mr Michael Karnavas, attorney at law from the United States, had agreed to represent him on an interim basis while the Registry assessed his eligibility for assignment of counsel;
CONSIDERING that Mr Karnavas has represented the Accused until the present ;
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 assignment of counsel 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. 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 Registry determines the eligibility of an accused for assignment of counsel in accordance with Article 8 of the Directive and the “Registry Policy for Determining the Extent to which a Suspect or an Accused is able to Remunerate Counsel” (“Registry Policy”) which is 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 equity in the Accused’s principal family home is included in his disposable means to the extent that it exceeds the reasonable needs of the Accused, his spouse and those with whom he habitually resides in accordance with Article 8(B) of the Directive and Section 5(a) of the Registry Policy;2
CONSIDERING that the Accused has an ownership interest in an apartment and that the equity in that apartment is included in his disposable means in accordance with Article 8(B) of the Directive and Section 5(e) of the Registry Policy; 3
CONSIDERING that the Accused owns a company and that the equity in that company is included in his disposable means in accordance with Article 8(B) of the Directive and Section 5(e) of the Registry Policy;4
CONSIDERING that the Accused owns shares and that the equity in those shares is included in his disposable means in accordance with Article 8(B) of the Directive and Section 5(d) of the Registry Policy;5
CONSIDERING that the Accused and his spouse are owed a debt and that the value of the debt is included in the Accused’s disposable means in accordance with Article 8(B) of the Directive and Section 5(e) of the Registry Policy;6
CONSIDERING that the Accused’s spouse holds moneys in a bank account and that under the marital property regime of Croatia, the Accused is deemed to have an ownership interest in those moneys;7
CONSIDERING that the value of the moneys held in the account is included in the Accused’s disposable means in accordance with Article 8(B) of the Directive and Section 5(e) of the Registry Policy;8
CONSIDERING that the Accused and his spouse have several additional bank accounts but that the balances of those accounts are de minimus and are not included in the Accused’s disposable means;9
CONSIDERING that large sums of cash were received by the Accused or his spouse or were withdrawn from their bank accounts in mid-2004 (“Liquid Funds”);
CONSIDERING that the Accused has satisfied the Registry, on the balance of probabilities, that some of the Liquid Funds have been exhausted and are no longer available to pay for the costs of his defence but has failed to account for the balance of the Liquid Funds;
CONSIDERING that in accordance with the burden of proof placed on the Accused to show that he lacks the means to remunerate counsel,10 the Liquid Funds which the Accused has not accounted for are included in his disposable means in accordance with Article 8(B) of the Directive and Section 5(e) of the Registry Policy;11
CONSIDERING that the Accused has a debt which is included in his disposable means as a negative integer in accordance with Article 8(B) of the Directive and Section 5(e) of the Registry Policy;12
CONSIDERING that the Accused’s spouse receives a salary and that under the marital property regime of Croatia, the salary of the Accused’s spouse constitutes marital property, owned jointly by the Accused and his spouse, and thus may reasonably be included in the Accused’s disposable means;13
CONSIDERING that in light of the above, the salary of the Accused’s spouse is included in the Accused’s disposable means in accordance with Article 8(B) of the Directive and Section 7(a) of the Registry Policy;14
CONSIDERING that the Accused’s daughter receives regular payments which are a benefit assigned to her by the Accused’s spouse and that because of the nature of the payments and the fact that the Accused’s daughter habitually resides with the Accused and is a member of the same financial unit, it is reasonable to include the value of those payments in the Accused’s disposable means;
CONSIDERING that in light of the above, the payments made to the Accused’s daughter are included in the Accused’s disposable means in accordance with Article 8(B) of the Directive and Section 7(a) of the Registry Policy;15
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, the amount remaining being the contribution to be made by the Accused to his defence;16
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:
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$97,148 and that as such he is partially able to remunerate counsel;17
CONSIDERING that the Accused has requested the Registry to assign Mr Karnavas as his Tribunal-paid counsel if he is to be granted Tribunal legal aid;
CONSIDERING that Mr Karnavas is on the Tribunal’s list of counsel eligible to represent indigent suspects or accused and that he has indicated his willingness to represent the Accused as his assigned counsel;
CONSIDERING that Mr Karnavas has previously represented Vidoje Blagojevic in The Prosecutor v Blagojevic and Jokic (IT-02-60) before the Tribunal;
CONSIDERING that the Registry is of the view that no conflict of interest exists between Mr Karnavas’ former representation of Mr Blagojevic and his representation of the Accused;
CONSIDERING that the costs of an accused’s defence before the Tribunal are contingent on the level of complexity of the case and, for the purposes of the trial stage, the estimated duration of proceedings;
CONSIDERING that the Registry has not yet finalised these determinations in the Accused’s case, but that once finalised, these determinations will be communicated to the Accused’s counsel;
DECIDES 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$97,148 to his defence costs;
DECIDES that with the exception of the Accused’s contribution of US$97,148 , 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)(i) of the Directive to assign Mr Michael Karnavas as counsel to the Accused permanently, effective as of 11 April 2005;
INFORMS the Accused and his counsel that the distribution of legal aid allotments and the deduction of the Accused’s contribution of US$97,148 from those allotments will be determined in a manner to be agreed upon by the Registry and the Accused’s counsel.
John Hocking
Deputy Registrar
Dated this 4th day of August 2005
At The Hague,
The Netherlands.