IN THE TRIAL CHAMBER
Before: Judge Gabrielle Kirk McDonald, Presiding
Judge Ninian Stephen
Judge Lal C. Vohrah
Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh
Decision of: 25 September 1996
DECISION ON DEFENCE APPLICATION FOR FORWARDING THE DOCUMENTS IN THE LANGUAGE OF THE ACCUSED
The Office of the Prosecutor:
Mr. Eric Ostberg
Ms. Teresa McHenry
Counsel for the Accused:
Ms. Edina Residovic, for Zejnil Delalic
I. INTRODUCTION AND PROCEDURAL BACKGROUND
Pending before this Trial Chamber of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991 ("International Tribunal") is an Application for Forwarding the Documents in the Language of the Accused ("Application") filed on behalf of the accused Zejnil Delalic on 15 May 1996. The Office of the Prosecutor ("Prosecution") filed a response on 29 May 1996. On 31 May 1996, the Trial Chamber entered an Order requiring the Registrar to respond to the Application, as "the subject-matter of the Application falls within the scope of the functions of the Registrar pursuant to Article 17 of the Statute and Rule 33 of the Rules of Procedure and Evidence of the International Tribunal". The Registrar responded to counsel for the accused by letter dated 14 June 1996. During a status conference held on 23 July 1996, the Defence asked that the matter be addressed by the Trial Chamber and sought leave to submit additional material. Additional material was submitted on 27 July 1996 to which the Prosecution responded on 31 July 1996.
THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions and the oral arguments of the parties,
HEREBY ISSUES ITS DECISION.
1. In the Application, the Defence requests that all "transcripts and other documents" be provided in Bosnian, the language of the accused, Zejnil Delalic, pursuant to Rule 3 of the Rules of Procedure and Evidence of the International Tribunal ("Rules"). The Defence asserts that the Application is based on the right of an accused to use his own language in order to ensure equal treatment as a party to proceedings before the International Tribunal. The Defence also argues that the requirement that counsel address the International Tribunal in one of its working languages is a restriction on the right of the accused to choose his own counsel.
2. The Prosecution has agreed that certain documents must be provided in the language of the accused, but contends that there is no requirement in either the Rules or the Statute of the International Tribunal ("Statute") that requires that all documents be in his language. In her response to counsel for the accused, the Registrar has taken a similar position.
3. At a status conference held on 23 July 1996, the parties identified four particular categories of documents which the Defence wishes to have translated into or to be able to submit in the language of the accused: (1) evidence admitted for trial; (2) discovery; (3) motions filed with the International Tribunal; and (4) private correspondence between the parties.
4. In resolving this dispute, the Trial Chamber has been guided by provisions in its Rules and Statute. Article 33 of the Statute states: "The working languages of the Tribunal shall be English and French". Rule 3, in relevant part, provides:
(A) The working languages of the Tribunal shall be English and French.
(B) An accused shall have the right to use his own language.
(C) Any other person appearing before the Tribunal, other than as counsel, who does not have sufficient knowledge of either of the two working languages, may use his own language.
(D) Counsel for an accused may apply to the Presiding Judge of a Chamber for leave to use a language other than the two working ones or the language of the accused. If such leave is granted, the expenses of interpretation and translation shall be borne by the Tribunal to the extent, if any, determined by the President, taking into account the rights of the defence and the interests of justice.
5. Although Sub-rule 3(A) tracks the language of the Statute by providing that the working languages are English and French, the Trial Chamber is aware that its interpretation of this Rule as it relates to the Application must be consistent with the rights of the accused provided by the Statute. Article 21, in relevant part, provides:
Rights of the accused
1. All persons shall be equal before the International Tribunal.
. . .
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:
(a) to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;
(b) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;
. . .
(f) to have the free assistance of an interpreter if he cannot understand or speak the language used in the International Tribunal.
6. The parties and the Registrar agree that all evidence submitted by either party at trial should be made available in one of the working languages and in the language of the accused. This is required to satisfy the guarantees of Article 21(1) and (4)(a) of the Statute. The Trial Chamber further finds that all material accompanying the indictment that the Prosecution is required to make available to the Defence pursuant to Rule 66(A) must be in the language of the accused, irrespective of whether it will be offered at trial.
7. No agreement has been reached by the Parties with respect to the second category of material: discovery. The Prosecution contends that the Defence has no legitimate interest in many of the documents in its possession for they will not relate to the determination by the Trial Chamber of the charges against the accused and that the cost and time required to translate all of these documents is unwarranted. The Prosecution asserts that although much of the material was originally in Serbo-Croat and thus will be provided to the Defence in that language, it should not be required to translate into the language of the accused all discovery it provides the Defence. Therefore, it will provide all discovery in its original form, if in the language of the accused, or in one of the two working languages of the International Tribunal.
8. The Trial Chamber finds that neither Rule 3 nor Article 21 entitles the Defence to receive all discovery from the Prosecution in the language of the accused. The guarantees of Article 21(4) do not extend to all material, but only to evidence which forms the basis of the determination by the Trial Chamber of the charges against the accused. This determination is made by the Trial Chamber after trial, and by considering only the evidence adduced during that proceding by the parties. The rights of the accused are fully protected by ensuring that all evidence submitted at trial is provided in his language. The Trial Chamber finds that discovery provided by the parties to each other shall be in the original language of the document, if that is the language of the accused, or in one of the working languages of the International Tribunal. If the original language of the document is one other than the language of the accused or one of the working languages, discovery shall be in one of the working languages.
9. The Prosecution asserts that the accused is not entitled to have motions that are filed with the International Tribunal provided to him in his own language but takes no final position and defers to the ruling of the Trial Chamber with respect to this category of documents. The Defence contends that it should be permitted to file its
motions in the language of the accused and that motions filed by the Prosecution should be translated by the Registrar into the language of the accused.
10. Implicit in the concept of "working languages" in Article 33 of the Statute and Rule 3(A) is that all papers which are filed with the International Tribunal be in either English or French. Neither Article 21(1) nor Article 21(4)(a) entitles the accused to submit or receive motions in his language because these do not fit within the parameters of the evidence upon which the Trial Chamber will base its determination of the charges against him. The provisions of Article 21(4)(a) and (f) do not entitle the Defence to have the Registrar expend the substantial time and cost required for the translation of motions into the language of the accused. The Trial Chamber determines that all motions are to be filed in one of the working languages of the International Tribunal. This requirement applies to all motions, memoranda and similar documents and all correspondence between the parties and to and from the International Tribunal.
11. Counsel for the accused has advised the International Tribunal that she reads and understands French. The accused is, therefore, not disadvantaged by this requirement. Motions may be filed by the Defence in French and will be translated into English, where necessary, by the Registry. Similarly, the Prosecution may continue to file its motions in English and the Registry shall translate them into French. For the avoidance of doubt, the effective date of filing of all such motions shall be the date of filing in the original language but all time-limits for responses and other replies shall run from the date of filing of the translation.
12. During all of its proceedings, the International Tribunal has interpreters whose responsibility it is to provide simultaneous interpretation of the proceedings into the language of the accused. This system satisfies the requirement of Article 21(4)(f) and ensures the right of the accused to understand the nature and cause of the charge against him under Article 21(4)(a). Sub-rule 3(C) clearly provides that, unlike others appearing before the International Tribunal, counsel do not have an automatic right to use their own language, even if that is the same as the language of the accused.
However, counsel are permitted to address the Trial Chamber in the language of the accused, pursuant to Sub-rule 3(D). The right under Sub-rule 3(D) for counsel to use the language of the accused without requiring leave of the Trial Chamber is based on the premise that it is desirable for counsel to be able to communicate easily with the accused.
13. The Trial Chamber will now address the argument as to restriction of the right of an accused to counsel of his own choosing pursuant to Article 21(4)(b). Given the facility provided by the International Tribunal for counsel to speak the language of the accused during the proceedings, in addition to the two working languages, there is no restriction upon this right.
14. Two additional categories of documents, not specifically identified by the parties at the status conference, but which have been the subject of discussions between the Defence and the Registrar, are transcripts of the proceedings and Orders and Decisions issued by the International Tribunal. The transcripts of the proceedings are provided in one or both of the working languages on request simply as an aide-mémoire for courtroom participants. As with motions and other similar documents, the Defence is not entitled to have the transcripts translated into the language of the accused. Finally, the Trial Chamber notes that all Decisions and Orders of the International Tribunal are issued simultaneously in both working languages and then translated into the language of the accused by the Registry. That procedure will be continued and it fully satisfies the rights of the accused.
For the foregoing reasons, THE TRIAL CHAMBER
PURSUANT TO RULE 3 AND RULE 54
AND SUBJECT TO FURTHER ORDER IN INDIVIDUAL CASES
HEREBY ORDERS as follows:
(1) all items of evidence, including the material submitted in support of the indictment, shall be translated by the Registry into the language of the accused;
(2) discovery of documents shall be made in the language in which the item was originally obtained if that is the language of the accused, or in one of the working languages of the International Tribunal, and any translation desired shall be the responsibility of the party requesting it;
(3) all motions, written arguments and other documents shall be filed in one of the working languages of the International Tribunal;
(4) all correspondence to or from an organ of the International Tribunal, including the Office of the Prosecutor, shall be in one of the working languages;
(5) counsel for the accused may use the language of the accused during all proceedings before the Trial Chamber;
(6) transcripts of proceedings before the International Tribunal shall be made available in one or both of the working languages, on request;
(7) all Orders and Decisions issued by the International Tribunal shall be filed in both working languages and translated by the Registry into the language of the accused.
Done in English and French, the English text being authoritative.
Gabrielle Kirk McDonald
Dated this twenty-fifth day of September 1996
At The Hague
[Seal of the Tribunal]