Case No. IT-01-48-T


Judge Liu Daqun, Presiding
Judge Amin El Mahdi
Judge György Szénási

Mr. Hans Holthuis

Decision of:
25 May 2005







The Office of the Prosecutor:

Ms. Sureta Chana
Mr. Philip Weiner
Mr. David Re

Counsel for the Accused:

Mr. Peter Morrissey
Mr. Guénaël Mettraux

TRIAL CHAMBER I, SECTION A, (“Trial Chamber”) of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (“Tribunal”);

BEING SEISED of the Defence “Motion for Disclosure of Circumstances of Translation and Replacing of Flawed Exhibit and Failure of Prosecution to Give Notice Thereof ”, filed 14 April 2005 (“Motion”), in which the Defence requests that the Prosecution be ordered to provide, among other things:

1. “a detailed explanation of the circumstances surrounding the original translation (“original translation”) of the Order of 30 August 1993 (“Order”)1 and the substitution of that translation for a new one (“second translation”)2 in the course of the trial”3; “a detailed chain of custody of that document and its original translation, including whether (the Prosecution investigator( Mr Mikhailov handled this document at any stage”4;

2. answers to a set of specific questions: who procured the original BCS version of the Order and who was responsible for the original translation thereof; when the Prosecution became aware of discrepancies between the Order and the original translation ; when a new translation was requested and by whom; why the Prosecution did not inform the Trial Chamber and the Defence that a second translation had been made and would be used at trial; whether the Prosecution military expert was given the second translation and, if so, whether he was informed of the differences between the original and the second translations;5

3. “an explanation and a detailed chain of custody of the two versions of the tapes ” in exhibits P312 and D351;6

NOTING that the Prosecution did not submit a written response to the Motion ;

NOTING that during the trial hearing on 18 February 2005 the Prosecution was requested by the Trial Chamber to provide further explanations in writing regarding the Order but that the Prosecution has not done this yet;7

NOTING that counsel for the Prosecution and the Defence have changed over time but nevertheless CONSIDERING that this is a pre-trial matter that should have been resolved at an earlier stage of the proceedings;

CONSIDERING in this respect, and REMINDING the Parties, that pursuant to Articles 20 and 21 of the Statute the Accused has a right to an expeditious trial , and, therefore, that timeliness is of utmost importance;

NOTING that the Defence submits that “(i(n the course of its preparation for trial, (it( became aware of the fact that the (original( English translation of the 30 August 1993 order was gravely misleading”8 and that, as a result, the Defence requested the Conference and Language Services Section of the Tribunal (“CLSS”) for a new translation, which was received on 24 May 20049 and in the Defence’s opinion “corrected…the misleading impression;”10

NOTING that during the trial hearing on 7 February 2005 the Prosecution made use of the second translation, which had not previously been disclosed to the Defence or to the Trial Chamber, and ALSO NOTING that the Defence did not bring its own new translation of the Order to the Trial Chamber’s attention before this occasion because, as it submits, the Defence “was intent on using that differences (sic ( in translation in cross-examination of expert witnesses”11 and to attempt “a coup in cross-examination”;12

NOTING that the Defence submits that subsequent to the trial hearing on 7 February 2005 the Parties discussed the matter of the second translation at which point the Prosecution stated, according to the Defence, that “a new translation of (the Order( had been requested a few days or weeks prior to trial”;13

NOTING that the trial commenced on 31 January 2005;

NOTING that during the trial hearing on 18 February 2005 the Prosecution explained that it was the provision of the Order to the Prosecution military expert that “prompted the new translation” and therefore that the military expert was provided with the second, and not the original, translation of the Order14, something which the Defence questioned;15

NOTING that the Prosecution military expert report was filed on 31 March 2003 and that reference is made therein to the second translation;16

NOTING that during the trial hearing on 24 May 2005 the Trial Chamber decided not to admit into evidence the report of the Prosecution military expert and not to hear the testimony of the military expert;17

CONSIDERING that a Party in knowledge of, or discovering, inaccuracies in translation of any document disclosed before, or tendered at, trial is under an obligation to inform the other Party in the case and the Trial Chamber thereof;

CONSIDERING that the Prosecution’s statements are contradictory as to when the second translation came into being, and MOREOVER CONSIDERING that the Prosecution has not so far satisfactorily explained, despite the Trial Chamber’s order to do so, why on 7 February 2005 it made use of the second translation without informing the Defence and the Trial Chamber of this in advance;

NOTING that during the trial hearing on 12 April 2005 it was apparent that the video recording in exhibit P312 differs from the video recording in exhibit D351, originally disclosed to the Defence by the Prosecution, which was identical except for the fact that the former did not contain all the sound recorded on the latter;

NOTING that exhibit D351 contains sound on a portion of the recording which the Defence considers is of “relative importance” to its case;18

CONSIDERING the importance of clarifying the discrepancy regarding exhibit P312 and exhibit D351 in order that the trial record contain original evidence;


PURSUANT TO Rule 54 of the Rules,

HEREBY GRANTS the Motion IN PART and ORDERS the Prosecution to clarify in detail and in writing to the Defence and to the Trial Chamber within one week of the date of this decision:

1. the circumstances surrounding the second translation of the Order, especially when , how and why that translation was requested;

2. the chain of custody of both exhibit P312 and exhibit D351 and to provide an explanation as to the cause of the discrepancies between the two recordings; and

DISMISSES the Motion in all other respects.

Done in English and French, the English version being authoritative.

Judge Liu Daqun

Dated this twenty-fifth day of May 2005,
At The Hague,
The Netherlands

[Seal of the Tribunal]

1 - Order by Rasim Delic forming a professional inspection team, No. 02/1047-1, dated 30 August 1993.
2 - The second translation is marked not admitted (“MNA”) 108, English translation ERN 0306-0317--0306-0318.
3 - Motion, para. 10.
4 - Motion, para. 14.
5 - Motion, para. 13.
6 - Both exhibit P312 and exhibit D351 are video tapes of Uzdol victims, produced by Mile Anic, chairman of the Prozor-Ram Municipal Court. The former exhibit is partially without sound whereas the latter is with all sound included.
7 - Transcript 18 Feb 2005, T. 12-13.
8 - Motion, para. 2.
9 - The Motion incorrectly provides that the translation was received on 24 May 2005. The Defence translation was admitted into evidence as exhibit D146.
10 - Motion, para. 4. The Defence request to CLSS for a re-translation of the Order is MNA 145.
11 - Motion, para. 4.
12 - Transcript 7 Feb 2005, T. 90.
13 - Motion, para. 6. The second Prosecution translation is MNA 108.
14 - Transcript 18 Feb 2005, T. 12.
15 - Transcript 18 Feb 2005, T. 13.
16 - Submission of Military Expert’s Report, filed confidentially on 31 March 2003, Annex B, listing Order No. 02/1047, signed by Rasim Delic, Commander, dated 30 August 1993, English ERN 0306-0317--0306-0318.
17 - Transcript 24 May 2005, T. 76-77.
18 - Transcript 12 Apr 2005, T. 72.