Case No.: IT-03-68-PT

IN TRIAL CHAMBER III

Before:
Judge Patrick Robinson, Presiding

Judge O-Gon Kwon
Judge Albertus Swart

Deputy Registrar:
David Tolbert

Decision of:
18 June 2004

PROSECUTOR

v.

NASER ORIC

Partly Confidential

__________________________________________________________

DECISION OF THE REGISTRY ON ASSIGNMENT OF COUNSEL AND THE EXTENT TO WHICH THE ACCUSED IS ABLE TO REMUNERATE COUNSEL

___________________________________________________________

Counsel for the Prosecutor:

Mr. Ekkehard Withopf
Mr. Jayantha Jayasuriva

Counsel for the defence:

Ms. Vasvija Vidovic
Mr. John Jones

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 (hereinafter “Rules”) as adopted by the Tribunal on 11 February 1994, as subsequently amended, and in particular Rules 44 and 45 thereof;

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

NOTING that on 14 April 2003, Mr. Naser Oric (hereinafter “Accused”) requested that Ms. Vasvija Vidovic, attorney at law from Sarajevo, be assigned as his defence counsel;

NOTING that on 16 April 2003, the Accused submitted a declaration of means to the Registry pursuant to Article 7 (B) of the Directive, claiming legal aid on the basis that he does not have sufficient means to remunerate counsel;

NOTING that on 18 June 2003, Ms. Vidovic submitted a request to the Registry that Mr. John Jones, attorney at law from London, be assigned as co-counsel to the Accused;

NOTING that on 24 April 2003, the Registry assigned Ms. Vidovic as counsel to the Accused for a period of 120 days and that after that period expired, the Registry extended Ms. Vidovic’s assignment for a period of 90 days on 27 August 2003;

CONSIDERING that on 1 July 2003, the Registry assigned Mr. Jones as co-counsel to the Accused for a period of 45 days and that on 27 August 2003, the Registry extended Mr. Jones’s assignment for a period of 90 days;

NOTING that on 27 November 2003, the Registry had not completed its inquiry into the means of the Accused, and extended the assignment of Ms. Vidovic and Mr. Jones as counsel and co-counsel for the Accused until 27 February 2004, pending verification of the Accused’s declaration of means;

NOTING that on 27 February 2004, the Registry had not completed its inquiry into the means of the Accused, and extended the assignment of Ms. Vidovic and Mr. Jones as counsel and co-counsel for the Accused for a period of 90 days;

CONSIDERING the information provided by the Accused in his declaration of means and the evidence gathered by the Registry during an inquiry into the Accused’s means pursuant to Article 10(A) of the Directive;

CONSIDERING that according 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 Accused has a wife (hereinafter “Accused’s spouse”), two children residing at home (hereinafter “children with whom the Accused habitually resides”) and a mother who does not live at that Accused’s home but who depends on him for financial support (hereinafter “Accused’s dependant”);

Registry Policy

CONSIDERING that the eligibility of an accused for legal aid is determined according to the “Registry Policy for Determining the Extent to which a Suspect or an Accused is able to Remunerate Counsel” (hereinafter “Registry Policy”), formulated pursuant to Articles 8 and 10 of the Directive and the direction of the Chambers of the Tribunal, and attached as Appendix II to this Decision;

NOTING that according to the Registry Policy, the Registry deducts from an applicant’s disposable means the estimated living expenses of his family and dependents during the estimated period in which the applicant will require representation before the International Tribunal, the amount remaining being the contribution to be made by the applicant to his defence;1

Principal Family Home

NOTING that according to the Registry Policy, no equity in an applicant’s principal family home is included in his disposable means unless it is owned by the applicant, his spouse or the persons with whom he habitually resides;2

CONSIDERING that the Accused’s principal place of residence is a rented apartment in Tuzla, Bosnia Herzegovina (hereinafter “Accused’s apartment”), which is not owned by the Accused, his spouse nor the children with whom he habitually resides and is therefore not included in the Accused’s disposable means;3

Furnishings

NOTING that according to the Registry Policy, no equity in furnishings in the principal family home is included in an applicant’s disposable means unless those furnishings exceed the reasonable needs of the applicant, his spouse and the persons with whom he habitually resides;4

CONSIDERING that whilst together the furnishings in the Accused’s apartment have significant value, indicating the apparent lifestyle of the Accused, those furnishings do not include a single luxury item of extraordinary value and as such, are found not to exceed the reasonable needs of the Accused, his spouse and the persons with whom he habitually resides and are therefore not included in the Accused’s disposable means;5

Real Property other than the Principal Family Home

NOTING that according to the Registry Policy, the Registry includes in an applicant’s disposable means the equity in any real estate owned by the applicant, his spouse or persons with whom he habitually resides other than the principal family home;6

CONSIDERING that the Accused has an equitable 1/6 share of a house and land in Potocari, Bosnia and Herzegovina (hereinafter “property in Potocari”), but cannot readily dispose of that share in order to raise money for his defence;7

CONSIDERING that the Accused’s share in the property in Potocari is not included in his disposable means;8

CONSIDERING that the Accused owns a house and adjacent land in Karaula, Bosnia and Herzegovina, and that the equity therein is included in the Accused’s disposable means;9

CONSIDERING that the Accused and his dependant enjoy the use of a building complex in Tuzla Pasci, Bosnia and Herzegovina (hereinafter “premises in Tuzla Pasci ”), rent-free but that the Registry has not been able to establish whether the Accused, his spouse or the children with whom he habitually resides have true and beneficial ownership of the premises;10

CONSIDERING that no equity in the premises in Tuzla Pasci is included in the Accused’s disposable means;11

CONSIDERING that the Accused is the owner of a trading company and that the equity therein, excluding the Accused’s tools of the trade, is included in his disposable means;12

Vehicles

NOTING that according to the Registry Policy, the Registry includes in an applicant’s disposable means the equity in the principal family vehicle or vehicles that exceeds the reasonable need of the applicant, his spouse and persons with whom he habitually resides;13

CONSIDERING that in his declaration of means the Accused declared only one vehicle, a 1994 VW Golf (hereinafter “VW Golf”) owned by his spouse;14

CONSIDERING that the VW Golf was acquired during the marital union of the Accused and his spouse, and that under the marital property regime of Bosnia and Herzegovina where the Accused and his spouse reside, the VW Golf constitutes marital property, owned jointly by the Accused and his spouse, and that in the absence of proof that that regime does not apply, the VW Golf may thus be considered for the purposes of calculating the Accused’s disposable means;15

CONSIDERING that the recognised burden of proof required to show that the Accused has the means to remunerate counsel is the balance of probabilities,16 the Registry is satisfied that there is sufficient material before it to support the factual finding that the Accused is the true and beneficial owner of two vehicles that were not reported in his declaration of means; a 1999 Mercedes 430 (hereinafter “Mercedes”) and a 1996 Jeep Wrangler (hereinafter “Jeep”);17

CONSIDERING that although the Registry finds that the Accused is the true and beneficial owner of the Mercedes, the Registry does not have sufficient material before it to support a factual finding that the Accused can readily dispose of it in order to raise money for his defence as of the date of this decision, and therefore the equity therein is not included in his disposable means, although the Registry investigation continues;18

CONSIDERING that together the VW Golf and the Jeep exceed the reasonable needs of the Accused, his spouse and the children with whom he habitually resides and therefore are included in the Accused’s disposable means to the extent that they exceed those reasonable needs;19

Bank Accounts

NOTING that according to the Registry Policy, equity in stocks, bonds or bank accounts, including TULP accounts, less allowances paid by the United Nations into that account are included in an applicant’s disposable means;20

CONSIDERING that the balance of the Accused’s TULP account minus allowances paid by the United Nations is included in the Accused’s disposable means;21

CONSIDERING that the Accused has a bank loan, which is deducted from his disposable means, together with interest payments over the term of the loan;22

CONSIDERING that in December 2000, the Accused received a large sum of money from a bank account in the United States and that the nature of the transaction suggests that the Accused may retain all or part of the sum;23

CONSIDERING that because the Registry has not been able to obtain sufficient proof showing it is more likely than not that the Accused retains all or part of the sum, no part of the sum is included in his disposable means for the purposes of this decision, although the Registry investigation into whether the Accused retains all or part of the sum is ongoing;24

Income

NOTING that according to the Registry Policy, the Registry includes in an applicant’s disposable means 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;25

CONSIDERING that the Accused receives a disability allowance from the Government of Bosnia and Herzegovina which is not included in his disposable means;26

CONSIDERING that the Accused’s spouse receives a monthly income which, under the marital property regime of Bosnia and Herzegovina constitutes marital property, owned jointly by both the Accused and his spouse, and that in the absence of proof that that regime does not apply, the income of the Accused’s spouse may thus be considered for the purposes of calculating the Accused’s disposable means;27

CONSIDERING that the income expected to be received by the Accused’s spouse 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 disposable means;28

Application of Formula

CONSIDERING that in determining the extent to which an applicant 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 dependents 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;

Accused’s Contribution

CONSIDERING that in applying the formula DM – ELE = C, the Accused’s contribution (US $213) is de minimis and that the Registry retains discretion under Article 8 of the Directive not to require the Accused to contribute such a sum to his defence ;29

DECIDES in light of the foregoing and in accordance with article 11(A)(ii ) of the Directive, that the Accused is unable to remunerate counsel.

DECIDES further and without prejudice to Articles 7(c) and 10 of the Directive, that the expenses referred to in Articles 22, 26 and 27 of the Directive shall be borne by the Tribunal;

Assignment of Counsel

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 assign Ms. Vidovic and Mr. Jones as counsel and co-counsel to the Accused permanently, as of 27 May 2004.

 

___________
David Tolbert
Deputy Registrar

Dated this 18th day of June 2004
At The Hague
The Netherlands


1 - Appendix II, Section 2
2 - Appendix II, Sections 4 and 5(a)
3 - Appendix I, paras 5-7
4 - Appendix II, Section 5(b)
5 - Appendix I, paras 8-11
6 - Appendix II, Section 5(e) and 6
7 - Appendix I, paras 12-16
8 - Appendix I, para 17
9 - Appendix I, paras 18-21
10 - Appendix I, paras 22-25
11 - Appendix I, para 26
12 - Appendix I, paras 27-32
13 - Appendix II, Section 5(c)
14 - Appendix I, paras 34-36
15 - The Law on the Marriage and Family Relations, Official Gazette of the Socialist Republic of Bosnia and Herzegovina 1979.
16 - Appeals Chamber Decision on Review of Registrar’s Decision to Withdraw Legal Aid from Zoran Zigic, 7 February 2003, paragraph 12.
17 - Appendix I, paras 37-51
18 - Appendix I, para 51
19 - Appendix I, paras 52-54
20 - Appendix II, Section 5 (d)
21 - Appendix I, paras 56-60
22 - Appendix I, paras 61-64
23 - Appendix I, paras 65-68
24 - Appendix I, paras 69
25 - Appendix II, Section 7
26 - Appendix I, para 71
27 - See note 15, supra
28 - Appendix I, para 77
29 - Appendix I, paras 81-82