REGARDING SLOBODAN PRALJAK's MOTION for ASSIGNMENT of COUNSEL in the INTEREST of JUSTICE the Office of the Prosecutor

IT-04-74-A 573 A573 - A560 22 October 2013 MC

UNITED NATIONS

International Tribunal for the Case No.: IT-04-74-A Prosecution of Persons Responsible for Serious Violations of Date: 21 October 2013 International Humanitarian Law Committed in the Territory of the Original: English former Yugoslavia since 1991

IN THE APPEALS CHAMBER

Before: Judge Theodor Meron, Presiding Judge Carmel Agius Judge Patrick Robinson Judge Fausto Pocar Judge Liu Daqun

Registrar: Mr. John Hocking

Submission date: 21 October 2013

PROSECUTOR

JADRANKO PRLI3 BRUNO STOJI3 SLOBODAN PRALJAK MILIVOJ PETKOVI3 VALENTIN 3ORI3 BERISLAV PUŠI3

PUBLIC

REGISTRAR’S SUBMISSION PURSUANT TO RULE 33(B) REGARDING SLOBODAN PRALJAK’S MOTION FOR ASSIGNMENT OF COUNSEL IN THE INTEREST OF JUSTICE

The Office of the Prosecutor: Mr. Douglas Stringer Mr. Mathias Marcussen Counsel for the Defence: Mr. Michael G. Karnavas and Ms. Suzana Tomanovi4 for Mr. Jadranko Prli4 Ms. Senka Nožica and Mr. Karim A. A. Khan for Mr. Bruno Stoji4 Ms. Nika Pinter and Ms. Nataša Fauveau-Ivanovi4 for Mr. Slobodan Praljak Ms. Vesna Alaburi4 and Mr. Guénaël Mettraux for Mr. Milivoj Petkovi4 Ms. Dijana Tomašegovi4-Tomi4 and Mr. Dražen Plavec for Mr.Valentin 3ori4 Mr. Fahrudin Ibrišimovi4 and Mr. Roger Sahota for Mr. Berislav Puši4 572

INTRODUCTION

1. Pursuant to Rule 33(B) of the Rules of Procedure and Evidence (“Rules”) of the International Criminal Tribunal for the former Yugoslavia (“Tribunal”), the Registrar respectfully offers his comments on “Slobodan Praljak’s Motion for Assignment of Counsel in the Interest of Justice” (“Motion”).1

2. In the Motion, Mr. Slobodan Praljak (“Praljak”) asks the Appeals Chamber to instruct the Registrar to assign Tribunal-paid counsel in the interests of justice pursuant to Rule 45ter of the Rules, irrespective of the Registrar’s decision of 22 August 2012 (“Decision on Means”)2 that Praljak is fully able to remunerate counsel and is thus ineligible for the assignment of Tribunal-paid counsel. The Motion is a direct application to the Appeals Chamber, and not a request for review of the Registrar’s Decision on Means, nor of any other administrative decision. The President of the Tribunal has already upheld the Decision on Means in all respects except insofar as it ordered Praljak to reimburse the Tribunal without first seeking an order of confirmation from the Trial Chamber (“President’s Decision”).3

SUMMARY OF ARGUMENT

3. The key question raised by Praljak’s Motion is whether a wealthy accused can obtain Tribunal-paid counsel by refusing to hire such counsel himself. Praljak is able to contribute a minimum of €6,456,980.00 to his defence. He is therefore fully able to remunerate counsel and is ineligible for the assignment of Tribunal-paid counsel. Further, Praljak has not elected to self-represent and, given his financial status and his assertion that he needs counsel, there is no basis to assume he will do so in the future.

4. Rule 45ter, which does not address legal aid and does not modify Article 21(4) of the Statute or Rule 45 of the Rules, which state that Tribunal-paid counsel is available only to those accused without sufficient means to remunerate counsel themselves. Any order granting legal aid to a non-indigent accused who simply refuses to spend his own

1 Prosecutor v. Prli4 et al., Case No. IT-04-74-A, Public with Public and Confidential Annexes, Slobodan Praljak’s Motion for Assignment of Counsel in the Interest of Justice, 4 October 2013. 2 Prosecutor v. Prli4 et al., Case No. IT-04-74-T, Public with Confidential Ex Parte Appendix I and Public Appendix II, Decision [of the Registrar], 22 August 2012. 3 Prosecutor v. Prli4 et al., Case No. IT- 04-74-A, Public, Public Redacted Version of the 25 July 2013 Decision on Slobodan Praljak’s Motion for Review of the Registrar’s Decision on Means, 28 August 2013, paras. 81-83.

IT-04-74-A 2 21 October 2013 571

money would be wholly contrary to the interests of justice and would adversely impact the legitimacy and functioning of the Tribunal.

BACKGROUND

5. The Registrar does not propose to reproduce an exhaustive history of the inquiry into Praljak’s means and his legal representation before the Tribunal in this submission, as these matters have been addressed extensively in alternate fora.4 Nevertheless, the Registrar respectfully offers a brief background summary for the benefit of the Appeals Chamber, and remains available should any additional information be required.

6. On 13 September 2004, Praljak submitted a declaration of means to the Registrar pursuant to Article 7 of the Directive on the Assignment of Defence Counsel (“Directive”),5 requesting the assignment of Tribunal-paid counsel on the basis that he lacked the means to remunerate counsel. The Registrar subsequently opened an inquiry into Praljak’s means pursuant to Article 9 of the Directive.6

7. On 17 June 2005, the Registrar denied Praljak’s request for the assignment of counsel on the basis that Praljak had refused to provide information relevant for the Registrar’s determination of his means (“17 June 2005 Decision”).7 The Registrar found that by doing so, Praljak had failed to discharge his burden of proof and consequently had failed to show that he was unable to remunerate counsel.8 In this decision, the Registrar noted his prior efforts to obtain relevant information from Praljak, Praljak’s refusal to cooperate with the Registrar’s inquiries, and the concern that Praljak was concealing significant assets from the Registrar.9

4 See paras. 6 – 22, infra. 5 IT/73/Rev. 11, 11 July 2006. At the time of Praljak’s declaration of means, the version of the Directive in effect was IT/73/Rev. 10, dated 4 August 2004. The current Directive is not materially different with respect to Praljak’s obligations, rights and remedies. References throughout this submission are to the current Directive in effect as of the date of the Decision on Means. 6 This inquiry included requests for information from Praljak and from relevant authorities, as well as on-site inquiries in Croatia and Bosnia and Herzegovina. 7 Prosecutor v. Slobodan Praljak, Case No. IT-04-74-PT, Public, Decision [of the Deputy Registrar], 17 June 2005, p. 2. At the time of this decision, Praljak was represented by privately retained counsel. 8 The 17 June 2005 Decision represented a denial of assignment of Tribunal-paid counsel in accordance with Article 8(C) of the Directive. 9 Prosecutor v. Slobodan Praljak, Case No. IT-04-74-PT, Public, Decision [of the Deputy Registrar], 17 June 2005, p. 2-3. The 17 June 2005 Decision also informed Praljak that his request for the assignment of counsel would be re-examined if and when he provided the Registrar with the information necessary to conclude the Registrar’s investigation into his means. Id.

IT-04-74-A 3 21 October 2013 570

8. Praljak then applied for review of the 17 June 2005 Decision. On 21 September 2005, Trial Chamber I upheld the Registrar’s 17 June 2005 Decision in all respects, finding that the burden lay unequivocally on Praljak to establish that he was unable to remunerate counsel and that, because he had not discharged that burden, he was not eligible for the assignment of Tribunal-paid counsel (“21 September 2005 Decision”).10 Trial Chamber I stated that since Praljak had “persistently refused” to provide the information requested by the Registrar, the decision of the Registrar to deny the assignment of Tribunal-paid counsel to Praljak was reasonable.11

9. On 31 October 2005, Praljak informed the Registrar in writing of his wish to represent himself. The Registrar subsequently filed a formal notification of Praljak’s election pursuant to Rule 45(F) of the Rules.12 Also on 31 October 2005, the case of Prosecutor v.Prli4 et al. was reassigned from Trial Chamber I to Trial Chamber II (“Trial Chamber”).13

10. On 12 January 2006, Praljak requested the Trial Chamber to find, inter alia, “in the interest of fairness, that [Praljak] cannot defend himself in this trial”, and to “assign [Praljak] defence counsel and award him reasonable means necessary for (a reasonable) preparation of defence.”14

11. On 15 February 2006, on the eve of trial and before the Registrar was able to complete his inquiry and determination on Praljak’s means, the Trial Chamber directed the Registrar to assign Tribunal-paid counsel to Praljak pursuant to Articles 20 and 21 of the Statute of the Tribunal and Rules 45 and 54 of the Rules on the grounds that assignment was in the interests of justice based on “the present circumstances and the information currently available” (“15 February 2006 Decision”).15 Significantly, the Trial Chamber noted that no assessment of Praljak’s means had yet been possible. The Trial Chamber reiterated that in accordance with Rule 45 of the Rules and the Directive,

10 Prosecutor v. Prli4 et al., Case No. IT-04-74-PT, Public Redacted Version, Decision on (Redacted) Request for Review of the Deputy Registrar’s Decision dated (Redacted) 2005 regarding the Accused’s Request for Assignment of Counsel, 5 October 2005. 11 Id., para. 22. 12 Prosecutor v. Slobodan Praljak, Case No. IT-04-74-PT, Public, Notification, 3 November 2005. 13 Prosecutor v. Prli4 et al., Case No.IT-04-74-PT, Public, Order Reassigning a Case to a Trial Chamber, 31 October 2005. 14 Prosecutor v. Prli4 et al., Case No. IT-04-74-PT, Public, Request by Slobodan Praljak for the Review of an Opinion of the Registrar of the Tribunal and Request for the Assignment of Defence Counsel, 12 January 2006. 15 Prosecutor v. Prli4 et al., Case No. IT-04-74-PT, Public with Confidential Annex, Decision on Assignment of Defence Counsel, 15 February 2006, para. 12.

IT-04-74-A 4 21 October 2013 569

“the onus is on [Praljak] to produce evidence that he is unable to remunerate counsel. In the Chamber’s assessment the information so far provided by [Praljak] remains incomplete and does not enable an adequate assessment of the financial means available to [Praljak] for his own defence costs. In these circumstances, [Praljak] will be ordered to provide further information with a view to determining what (if any) financial means are available to [Praljak].”16 The Trial Chamber ordered Praljak to provide and substantiate answers to the questions set out in the confidential annex to its decision within 21 days.17

12. On 6 March 2006, the Registrar assigned Tribunal-paid counsel to Praljak with the caveat that Praljak had not yet proved his inability to remunerate counsel, and without prejudice to the Registrar’s powers to withdraw the assignment of Tribunal-paid counsel in the event that Praljak was later found to have sufficient means to do so.18 Following this decision, Praljak’s defence team began receiving full legal aid allotments.

13. The Registrar continued his inquiry into Praljak’s means, notwithstanding that, as the President later held, Praljak “consistently frustrated the Registrar’s investigation into his means, refusing to provide information and refusing to comment on information gathered by the Registrar when offered the opportunity to do so.”19

14. On 22 August 2012, the Registrar issued his Decision on Means, finding that Praljak was able to contribute a minimum of €6,456,980.00 to his defence costs and as such was fully able to remunerate counsel and was ineligible for the assignment of Tribunal- paid counsel. The Registrar withdrew the assignment of counsel, with the withdrawal set to become effective on the future date of delivery of the Trial Chamber judgement.20 The Registrar also directed Praljak to reimburse the Tribunal for all legal aid funds previously expended by the Tribunal in relation to Praljak’s defence.21

16 Id., para. 13. 17 Id., p. 7. 18 Prosecutor v. Prli4 et al., Case No. IT-04-74-PT, Public, Decision [of the Deputy Registrar], 6 March 2006. 19 President’s Decision, paras. 36-37. The Registrar’s confidential and ex parte submission to the President of 26 April 2013 and the confidential and ex parte Appendix I to the Decision on Means outline the comprehensive efforts undertaken to appropriately assess Praljak’s means in the subsequent years. See President’s Decision, para. 1. 20 Praljak’s defence team had already been fully remunerated for trial proceedings under the Defence Counsel Trial Legal Aid Policy. 21 Decision on Means, pp. 6-7.

IT-04-74-A 5 21 October 2013 568

15. On 22 January 2013, Praljak filed a motion before the Trial Chamber for a review of the Decision on Means (“Motion for Review”).22 The Trial Chamber referred the Motion for Review to the President of the Tribunal for adjudication.23

16. On 29 May 2013, the Trial Chamber rendered its judgement in the case of Prosecutor v. Prli4 et al., in French, sentencing Praljak to 20 years of imprisonment.24 On the same date the President issued an interim order staying the withdrawal of counsel pending resolution of the Motion for Review (“Interim Order”).25 In accordance with the Interim Order, the withdrawal of Praljak’s Tribunal-paid counsel was stayed pending a final decision of the President with respect to the Motion for Review.

17. On 28 June 2013, a notice of appeal against the trial judgement was filed on behalf of Praljak.26

18. On 25 July 2013, the President issued the President’s Decision, which upheld the Decision on Means in all respects other than the failure to first obtain an order of confirmation from the Trial Chamber before seeking reimbursement.27 The President found the Decision on Means to be the first substantive decision on Praljak’s ability to remunerate counsel.28 The President stated: “While I consider eight years an inordinately long time to come to a determination on an accused’s ability to remunerate counsel, I note that [Praljak] consistently frustrated the Registrar’s investigation into his means, refusing to provide information and refusing to comment on information gathered by the Registrar when offered the opportunity to do so. [Citation omitted.] I thus consider that [Praljak] significantly contributed to the delay in the issuance of the

22 Prosecutor v. Prli4 et al., Case No. IT-04-74-T, Confidential and Ex Parte with Confidential and Ex Parte Annexes, Requête de Slobodan Praljak aux Fins d’Examen de la Decision du Greffier avec la Demande d’Autorisation de Depasser le Nombre de Mots Fixe, 22 January 2013. An English translation was filed on 1 February 2013. 23 Prosecutor v. Prli4 et al., Case No. IT-04-74-T, Confidential and Ex Parte, Décision portant sur la Requête de Slobodan Praljak aux Fins d’Examen de la Décision du Greffier du 22 Août 2012 , 24 January 2013. An English translation was filed on 29 January 2013. 24 Prosecutor v. Prli4 et al., Case No. IT-04-74-T, Public, Jugement, 29 May 2013. 25 Prosecutor v. Prli4 et al., Case No. IT-04-74-T, Confidential and Ex Parte, Order Regarding Assignment of Defence Counsel to Slobodan Praljak, 29 May 2013. 26 Prosecutor v. Prli4 et al., Case No. IT-04-74-A, Public, Slobodan Praljak’s Notice of Appeal, 28 June 2013; Public, Corrigendum to Slobodan Praljak’s Notice of Appeal, 29 July 2013. 27 President’s Decision, paras. 81-83. With respect to the order for reimbursement, the President found that the Registrar had contravened Rule 45(E) of the Rules by directly ordering Praljak to reimburse the Tribunal rather than applying to the relevant chamber for an order of contribution to recover the cost of providing counsel. See para. 39. 28 Id., para. 32.

IT-04-74-A 6 21 October 2013 567

Decision on Means.”29 The President also upheld the Registrar’s determination that Praljak had transferred various assets for the purpose of concealing them and specifically rejected Praljak’s argument that it would be against the interests of justice to deny him Tribunal-paid counsel at the appeal phase of his case.30

19. Following the President’s Decision, the Decision on Means became effective,31 including the Registrar’s withdrawal of Praljak’s assigned counsel, Ms. Nika Pinter and Ms. Nataša Fauveau-Ivanovi4. By letter of 26 July 2013, Praljak was informed that the Decision on Means had become effective and that payment of legal aid had therefore been discontinued.32 Praljak was asked to inform the Registrar whether he wished to: i) privately retain Ms. Pinter and Ms. Fauveau-Ivanovi4 pursuant to Rule 44 of the Rules; ii) privately retain alternate counsel pursuant to Rule 44 of the Rules; or iii) conduct his own defence pursuant to Rule 45(F) of the Rules.

20. On 27 August 2013, Praljak executed a power of attorney in favour of Ms. Pinter and Ms. Fauveau-Ivanovi4 to enable them to continue to represent him in proceedings before the Tribunal. On 25 September 2013, Ms. Pinter and Ms. Fauveau-Ivanovi4 indicated to the Registrar their consent to continue representing Praljak for a limited duration and with a limited scope. By separate correspondence to the President of the same date, Praljak stated that he had agreed with his counsel that they would represent him before Tribunal on a pro bono basis and with limited authority.

21. On 2 October 2013, the Registrar issued a decision admitting Ms. Pinter and Ms. Fauveau-Ivanovi4 as privately retained counsel pursuant to Rule 44 of the Rules to represent Praljak before the Tribunal.33

22. On 4 October 2013, Praljak filed the present Motion, asking the Tribunal to pay for his counsel in the interests of justice, and basing his request on Rule 45ter of the Rules.

29 Id., paras. 36-37. 30 Id., paras. 38, 45, 51, 68, 76, 81-82. 31 Save for the order of reimbursement. 32 Ms. Pinter and Ms. Fauveau-Ivanovi4 received legal aid funds for their work on Praljak’s notice of appeal and appeal brief, up to and including work performed on 25 July 2013. 33 Prosecutor v. Slobodan Praljak, Case No. IT-04-74-A, Public, Decision [of the Deputy Registrar], 2 October 2013.

IT-04-74-A 7 21 October 2013 566

APPLICABLE LAW

23. Article 20(1) of the Statute states: “The Trial Chamber shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses.”

24. Article 21 of the Statute sets forth the rights of the accused. It states in relevant part: “(4) In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality: . . . (d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.”

25. Rule 45 of the Rules implements an indigent accused’s right to Tribunal-paid counsel, as guaranteed by Article 21(4)(d) of the Statute. Rule 45 states in relevant part:

“(A) Whenever the interests of justice so demand, counsel shall be assigned to suspects or accused who lack the means to remunerate such counsel. Such assignments shall be treated in accordance with the procedure established in a Directive set out by the Registrar and approved by the permanent Judges. . . .

(E) Where a person is assigned counsel and is subsequently found not to be lacking the means to remunerate counsel, the Chamber may, on application by the Registrar, make an order of contribution to recover the cost of providing counsel.”

26. Rule 45ter of the Rules states: “The Trial Chamber may, if it decides that it is in the interests of justice, instruct the Registrar to assign a counsel to represent the interests of the accused.”

27. The Directive was established in accordance with Rule 45 of the Rules to codify the Tribunal’s system of assignment of Tribunal-paid counsel. Article 1(A) states in relevant part: “The Tribunal’s system of assignment of counsel seeks to provide legal assistance to indigent suspects or accused in the most efficient, economical and equitable manner in order to safeguard the rights afforded to suspects and accused

IT-04-74-A 8 21 October 2013 565

under the Statute and the Rules. This Directive establishes objective criteria to be used in the Registrar’s determination of the eligibility of a suspect or accused for the assignment of counsel and codifies the modalities of payment of assigned counsel and their support staff.”

28. Article 6 of the Directive governs the right to Tribunal-paid counsel. It states in relevant part:

“(A) A suspect or accused who lacks the means to remunerate counsel shall have the right to have counsel assigned to him and paid for by the Tribunal in accordance with this Directive. . . .

“(B) A suspect or accused lacks the means to remunerate counsel if he does not have the means which would enable him to cover the costs of his defence as determined by the Registrar in accordance with Section VII of this Directive.

“(C) For an accused who has the means to partially remunerate counsel, the Tribunal shall pay that portion of his defence costs which the accused does not have sufficient means to cover. . . .”

29. Articles 7 to 11 of the Directive set forth the procedure for the assignment of Tribunal- paid counsel to indigent accused. Article 7 requires that an accused who wishes to have counsel assigned to him at Tribunal expense must make a declaration of his means on the form provided by the Registrar and certify that the information contained therein is true and complete to the best of the accused’s knowledge. Article 8 likewise places the burden on the accused to produce evidence establishing that he is unable to remunerate counsel and to provide or facilitate the production of information required by the Registrar during any independent inquiry, authorised by Article 9, into the accused’s means. Article 8 also permits the Registrar to deny the assignment of Tribunal-paid counsel to an accused who fails to comply with his obligations to produce or facilitate the production of evidence.34 Article 10 sets forth the information that the Registrar must take into account when determining an accused’s means. Article 11 requires the Registrar to deny a request for Tribunal-paid counsel if the accused has sufficient means to remunerate counsel himself.

34 That the burden of proof lies on the accused to demonstrate his inability to remunerate counsel is well- established in the jurisprudence of this Tribunal. See President’s Decision, para. 35.

IT-04-74-A 9 21 October 2013 564

30. Finally, Article 19(A) of the Directive states: “Where counsel has been assigned, the Registrar may withdraw the assignment of counsel if information is obtained which establishes that the suspect or accused has sufficient means to remunerate counsel. In such cases, the Registrar may recover the cost of providing counsel in accordance with Rule 45(E) of the Rules.”

SUBMISSION

I. Rule 45ter does not modify the requirements of Article 21(4) of the Statute or Rule 45 of the Rules that only an accused with insufficient means to remunerate counsel is entitled to Tribunal-paid counsel.

31. Neither the Statute nor the Rules authorise the assignment of Tribunal-paid counsel to an accused in Praljak’s financial circumstances, as under both the Statute and the Rules, an accused’s right to Tribunal-paid counsel is premised on his inability to pay for counsel himself.

32. Article 21(4) of the Statute provides that “the accused shall be entitled . . . to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.” Rule 45ter appears to reflect the overarching first leg of this provision, allowing counsel to be assigned to an accused if it is in the interests of justice. Rule 45 implements the second scenario, a subset of the first, where an accused additionally does not have sufficient means to pay for this, in which case counsel will be funded by the Tribunal.

33. The plain language of the Statute and the Rules makes clear that the standard for Tribunal-paid counsel is inadequacy of means. Rule 45ter does not speak to legal aid and cannot override these explicit requirements. While the language of the Statute is authority enough, the Registrar further notes that it would be nonsensical for one Rule to provide for Tribunal-paid counsel in the interests of justice and on the basis of means, while another provided Tribunal-paid counsel in the interests of justice alone.

34. Accordingly, Rule 45ter cannot form the basis of an order granting legal aid to Praljak.

II. It would be contrary to the interests of justice to assign Tribunal-paid counsel to an appellant who has sufficient means to remunerate defence counsel, as it would

IT-04-74-A 10 21 October 2013 563

contradict the plain language of Article 21(4) of the Statute and Rule 45 of the Rules, nullify the Tribunal legal aid system, and encourage other wealthy accused to refuse to pay for counsel, both at the Tribunal and at other international criminal tribunals.

35. It would be contrary to the interests of justice to assign Tribunal-paid counsel to Praljak at this stage of the proceedings, and not only because this would violate the plain language of the Statute and the Rules. The interests of justice go beyond the interests of the accused, and include the Tribunal’s fundamental interest in its own legitimacy as well as the interests of the public.35

36. Praljak is able to contribute a minimum of €6,456,980 to his defence.36 The Registrar’s assessment of Praljak’s means was subject to a full and fair legal challenge, during which Praljak remained represented by his Tribunal-paid counsel who made several submissions on his behalf. In upholding the Registrar’s decision, the President specifically rejected Praljak’s argument that it would be “against the interests of justice” to deny him Tribunal-paid counsel at the appeal phase of his case, as “the Registrar was reasonable in determining that [Praljak] is able to remunerate counsel and is thus not eligible for legal aid”.37

37. The circumstances in which the Trial Chamber took its 15 February 2006 Decision, finding it in the interests of justice to assign Tribunal-paid counsel to Praljak, were determinatively different to those prevailing today. That decision was taken on the eve of trial and, critically, before a final determination of Praljak’s means had been made. Here, the President has upheld the Registrar’s final determination of Praljak’s means, and appeal proceedings are stayed pending the English translation of the trial judgement. The issue currently at stake, as the President’s Decision has made clear, is not the interests of justice but Praljak’s reluctance to spend his own money on his defence. If Praljak, as he so strenuously argues,38 needs legal counsel due to his lack of legal knowledge or the complexity of the case, he has substantial funds with which to obtain it. He should not be allowed, however, to threaten to hold his co-appellants – and

35 See Prosecutor v. Šešelj, Case No. IT-03-67-PT, Public, Decision on Prosecution’s Motion for Order Appointing Counsel to Assist Vojislav Šešelj with his Defence, 9 May 2003, para. 20; Prosecutor v. Jelisi4, Case No.IT-95-10-A, Public, Judgement, Partial Dissenting Opinion of Judge Shahabuddeen, 5 July 2011, para. 28. 36 Decision in Means, p. 6. See also President’s Decision, para. 82. 37 President’s Decision, para. 38. 38 Motion, paras. 15-23, 25.

IT-04-74-A 11 21 October 2013 562

the Tribunal itself – hostage by refusing to hire counsel in an attempt to secure Tribunal legal aid funding.

38. Granting legal aid to a wealthy individual because he refuses to hire counsel himself would render meaningless the Tribunal’s comprehensive legal aid system established under the Statute, Rules and Directive. It would waste public funds, which the Registrar has a duty to safeguard, and reward Praljak’s obstructive conduct. It would be fundamentally unfair to accused who have cooperated with inquiries, particularly the many found partially able to remunerate counsel whose legal aid allotments were reduced accordingly. Other accused with means, at the Tribunal or before other international courts, would surely also refuse to hire counsel and rely on the Tribunal to step in to pay.

39. The Tribunal is at the forefront of the development of international criminal justice, and other international criminal tribunals consistently look to Tribunal jurisprudence and cite it in their own. Granting legal aid to a wealthy accused, in direct contravention of the Statute and the Rules, would circumvent the Tribunal’s entire legal aid system, undermine the legitimacy of the Tribunal and create a worrying precedent for international criminal courts around the world.

III. Praljak’s remaining arguments in support of the assignment of Tribunal-paid counsel are without merit.

40. The Tribunal has expended approximately €3 million on Praljak’s defence while he was in fact able to contribute close to €6.5 million himself. He has not yet reimbursed this sum. In these circumstances, Praljak’s argument that the Tribunal will suffer no prejudice in expending further public funds on his behalf, because it can recover the money from him at a later date, lacks plausibility. To grant him further legal aid would most certainly harm the Tribunal financially.

41. Moreover, while the Registrar’s ability to recover costs is irrelevant to the current motion, the Registrar notes that seeking a Rule 45(E) order of recovery is a method of last resort.39 Even if the Registrar secures an order for the repayment of funds,

39 The only other instance of an accused claiming legal aid, and later being found fully able to pay, is Baton Haxiu, who was charged with contempt of the Tribunal. In this instance, the Tribunal expended only €12,122.80 in Mr. Haxiu’s defence, and the Tribunal was ultimately reimbursed by Mr.Haxiu directly. See Prosecutor v.

IT-04-74-A 12 21 October 2013 561

execution of the order is untested, and the Registrar anticipates it will be a lengthy and expensive endeavour requiring the cooperation of external jurisdictions, as Praljak has significant real estate and business assets held in the name of third parties. Unless Praljak reimburses the Tribunal immediately and voluntarily upon request, which the Registrar considers unlikely, the recovery procedure will likely involve the expenditure of significant resources by the Tribunal or its successor in terms of staff manpower and otherwise.40 The system proposed by Praljak—payment first and possible recovery of funds later—is imprudent and jeopardises public funds, which the Registrar has a duty to safeguard.

42. Finally, the cases cited by Praljak in support of his request are inapposite, as none involved a non-indigent accused fully able to remunerate counsel.41 Nor are the legal aid systems of Croatia or Bosnia and Herzegovina relevant to the legal aid system of the Tribunal, which is unequivocally available only to accused who are fully or partially indigent.

CONCLUSION

43. For the above reasons, the Registrar respectfully submits that Rule 45ter of the Rules does not modify the requirements of Article 21(4) of the Statute and Rule 45 of the Rules that only indigent accused are entitled to legal aid, and that granting additional legal aid to an accused who is able to contribute approximately €6.5 million to the costs of his defence would be wholly contrary to the interests of justice.

44. Accordingly, the Registrar asks the Appeals Chamber to deny Praljak’s Motion in its entirety.

Haxiu, Case No. IT-04-84-R77.5-A, Public, Registry Notice Pursuant to Rule 33(B) Concerning Receipt of Funds, 4 May 2011. 40 For example, the hiring of a local counsel in the national jurisdiction to help secure the recovery of assets. 41 See Prosecutor v. Šešelj, Case No. IT-03-67-PT, Public, Decision on Prosecution’s Motion for Order Appointing Counsel to Assist Vojislav Šešelj with his Defence, 9 May 2003; Prosecutor v. Miloševi4, Case No. IT-02-54-T, Public, Reasons for Decision on Assignment of Defence Counsel, 22 September 2004; Miloševi4 v. Prosecutor, Case No.IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel, 1 November 2004; Prosecutor v. Karadži4, Case No.IT-95-5/18-T, Decision on Designation of Standby Counsel, 15 April 2010; Prosecutor v. Tolimir, Case No. IT-05-88/2-T, Order Issuing a Public Redacted Version of the “Decision on Accused’s Request to the Trial Chamber Concerning Assistance of his Legal Advisor”, 27 May 2010; Prosecutor v. Barayagwiza, Case No. ICTR-97-19- T, Decision on Defence Counsel Motion to Withdraw, 2 November 2000; Prosecutor v. Norman et al., Case No. SCSL-04-14-T, 8 June 2004.

IT-04-74-A 13 21 October 2013 560

Respectfully submitted,

Kate Mackintosh Deputy Registrar

Dated this twenty-first day of October 2013 At The Hague, The Netherlands.

IT-04-74-A 14 21 October 2013