Seselj Granted Legal Aid

Friday, 20 May, 2011

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Rachel Irwin

Senior Reporter

The Hague tribunal appeals chamber has upheld a decision ordering legal aid for Serbian nationalist politician Vojislav Seselj – a conclusion that one dissenting judge called a “very dangerous precedent”.

“This clearly sets a very dangerous precedent and will not provide any incentive or motivation for the tribunal’s accused to prove their indigence, ultimately resulting in a waste and mismanagement of public funds,” Judge Fausto Pocar states in his dissenting opinion.

Since Seselj – a lawyer by training - surrendered to the tribunal in 2003, he has insisted on representing himself and even went on hunger strike in 2006 when judges tried to assign him counsel. He has also insisted, since the time of his arrest, that the court fund additional members of his defence team.

Last July, the court registry officially denied Seselj legal aid, stating that he had consistently failed to provide proof that “he does not have sufficient means to pay for his defence”, despite repeated requests over the years for him to do so.

However, last October 29, trial judges ordered the registry to fund 50 per cent of what would normally be allocated for an indigent accused.

Deputy registrar Ken Roberts asked the appeals chamber to quash this decision, stating that “the trial chamber cannot appropriate for itself a power that is explicitly conferred elsewhere, and that an accused before this tribunal remains ineligible to receive tribunal funding for his defence in the absence of established indigence”.

He further stated that the trial judges have “no jurisdiction” to issue such a decision and that they have “substituted” their own decision for that of the registrar.

In the appeals decision, made public on May 17, the majority of judges agreed with the trial chamber’s ruling on the matter and dismissed the registry’s request.

The appeals chamber stated that “the issue of legal assistance provided to a self-represented accused is not just an administrative matter, but may also impact the substantive rights of an accused to a fair and expedient trial”.

“It was not unreasonable for the trial chamber to address the question of resources, particularly in light of the possible alternatives, which include staying of proceedings where the lack of resources would risk a miscarriage of justice,” the majority stated.

They also noted that the registry never sought a court order from trial judges to obtain information about “the content of certain bank accounts” but that this would have been an “appropriate” action in determining the financial status of the accused.

“This decision is not a final ruling on the matter … but is simply an interim measure, until sufficient information is available for the registry to assess the financial status of the accused himself,” the majority of appeals judges ruled.

One judge on the five member panel, Mehmet Guney, partially dissented, stating that it was “not unreasonable for the trial chamber to intervene”, but that he could not agree “with the extent of the intervention”.

The matter, he said, should have been referred back to the registrar to determine the “proper amount of funds to be provided temporarily to the accused pending the completion of the financial investigation into the accused”.

Judge Pocar, however, rejected the majority decision entirely.

“In my view, the trial chamber abused its discretion and acted contrary to the jurisprudence of the tribunal,” Judge Pocar stated in his dissenting opinion.

He further stated that legal aid and matters of indigence are “the primary competence of the registrar” and that while registry decisions are subject to judicial review, this did not happen. Instead, trial judges ruled on the matter using their own initiative.

Furthermore, the judge said that the appeals decision “effectively reversed the burden of proof” when it comes to determining the indigence of an accused.

“In doing so, the trial chamber also set a very dangerous precedent, that even when the accused fails to demonstrate that he is indigent, he may receive public funds to finance his defence,” Judge Pocar wrote.

He also notes that the majority “blames the registry” for not seeking a court order from trial judges to investigate Seselj’s bank accounts.
“If the burden of proof rests solely on the accused, the registry certainly has no obligation to seek a court order, in the absence of cooperation from the accused, to prove the indigence of an accused and cannot be blamed for its failure to do so,” the judge continues.

He further states that it is “naïve to believe that an accused, who refused to collaborate with the registry to prove his indigence, will reimburse the allocated funds if he is ultimately proved not indigent”.

Seselj is charged with nine counts of war crimes and crimes against humanity – including murder, torture and forcible transfer – for atrocities carried out in an effort to expel the non-Serb population from parts of Croatia and Bosnia between August 1991 and September 1993. He remains leader of the Serbian Radical Party, SRS, based in Belgrade.

Seselj’s criminal trial has endured repeated delays since it officially began in November 2007, a full year after the original trial date was postponed due to the accused’s hunger strike. The defence phase of the case has yet to begin.

In 2009, Seselj was found guilty of contempt and sentenced to 15 months in prison for revealing details about protected prosecution witnesses in one of the books he authored.

He faces similar charges in a second contempt trial that is due to resume next month.

Rachel Irwin is an IWPR reporter in The Hague.