Case No. IT-02-58-PT
Prosecutor v. Ljubisa Beara
DECISION
THE DEPUTY REGISTRAR,
CONSIDERING the Statute of the Tribunal as adopted by the Security Council under Resolution 827 (1993), and in particular Article 21 thereof;
CONSIDERING 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;
CONSIDERING the Directive on Assignment of Defence Counsel, as adopted by the Tribunal on 28 July 1994, as subsequently amended ("Directive"), and in particular, Articles 8, 10, 11(A) (ii) and 18 thereof;
CONSIDERING that on 14 October 2004, Ljubiša Beara ("Accused") applied for Tribunal legal aid on the basis that he did not have sufficient means to remunerate counsel;
CONSIDERING that on 28 October 2004, the Accused requested Mr John Ostojic, attorney at law from Chicago, to be assigned as his lead counsel;
CONSIDERING that on that date the Registry had not yet assessed the Accused’s ability to remunerate counsel and that in order to ensure that the Accused’s right to counsel was not affected while it did so, the Deputy Registrar assigned Mr Ostojic as counsel to the Accused on 11 November 2004 for a period of 120 days pursuant to Article 11(B) of the Directive;
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 has been given an opportunity to comment on the findings of the Registry’s inquiries into his means;
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. 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 legal aid 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 an applicant for legal aid’s disposable means and then deducts the estimated living expenses of his family and dependents during the estimated period in which the applicant will require representation before the International Tribunal from his disposable means, the amount remaining being the contribution to be made by the applicant to the costs of his defence;1
CONSIDERING that the Accused’s principal place of residence is not owned by him and is therefore not included in his disposable means ;2
CONSIDERING that the Accused’s spouse owns an apartment in which the Accused has no property interest and which is therefore not included in his disposable means;3
CONSIDERING that the Accused and his spouse receive monthly pensions and that the Accused receives financial assistance from the Government of Serbia and Montenegro (together "Incomes");4
CONSIDERING that under the marital property regime of Serbia and Montenegro, the pension of the Accused’s spouse constitutes marital property, owned jointly by the Accused and his spouse, and may thus be considered for the purposes of calculating the Accused’s disposable means;5
NOTING that according to the Registry Policy, the Registry includes in an applicant’s disposable means the income of the applicant, his spouse and the persons with whom he habitually resides and that such income is calculated on the basis that it will continue to be received from the date on which the Registry files its decision on the extent to which an applicant is able to remunerate counsel until the conclusion of the estimated period in which the applicant will require representation before the International Tribunal;6
CONSIDERING that the above-mentioned Incomes are included in the Accused’s disposable means on this basis;7
CONSIDERING that in determining the extent to which an applicant for legal aid 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$ 15,813 and that as such he is partially able to remunerate counsel;8
NOTING that as of today’s date, the costs of the Accused’s defence before the International Tribunal at the pre-trial stage (excluding the costs of necessary travel and Daily Subsistence Allowances) are estimated at US$ 274,606;
NOTING that as of today’s date, it is not possible to accurately estimate the costs of the Accused’s defence before the International Tribunal at the trial stage;
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$ 15,813 to the costs of his defence before the International Tribunal;
DECIDES that with the exception of the Accused’s contribution of US$ 15,813, the expenses referred to in Articles 22, 26 and 27 of the Directive shall be borne by the International Tribunal;
DECIDES without prejudice to Article 18 of the Directive and pursuant to Article 11(A)(i) of the Directive to assign Mr John Ostojic as counsel to the Accused permanently, effective as of 10 March 2005;
INFORMS the Accused and his counsel that the Accused’s contribution of US$ 15,813 will be deducted from legal aid allotments paid to his defence team on a pro rata basis, with US$ 7,306.50 being deducted at the pre-trial stage and US$ 7,306.50 being deducted at the trial stage.
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John Hocking
Deputy Registrar
Dated this 18th day of April 2005
At The Hague
The Netherlands