"Decision on Defence's Motion concerning Translation of all Documents"

18 October 2001
Trial Chamber I - Section A (Judges Liu [Presiding], Harding Clark and Diarra)

Procedural Background

• On 11 September 2001, Counsel for Mladen Naletilic presented an oral Motion for the translation into Bosnian/Croatian/Serbian (hereinafter "B/C/S") of all the evidence submitted by the Prosecutor. The Trial Chamber requested that the parties make written submissions.

• On 17 September 2001, Counsel for Mladen Naletilic filed the Defence Opinion concerning Translation of All Documents. He requested that all the documents intended to be submitted for admission by the Prosecutor be translated into a language the accused understands so that he may properly prepare and present his defence. Counsel for Mladen Naletilic argued that the accused has a right to a fair trial pursuant to Article 21(4) of the Statute1 and that a fair trial is not guaranteed by the fact that Defence Counsel understands and speaks English. Counsel for Mladen Naletilic further submitted that the accused has the right to understand the content of the documents used to prosecute him and referred to the Decision on Defence Application for Forwarding Documents in the Language of the Accused rendered by Trial Chamber II on 25 September 1996 in the case The Prosecutor v. Zejnil Delalic et al.2

• That same day, the Prosecution filed the Prosecutor's Submission concerning Translation of Non-BCS Documentary Exhibits into BCS in which it argued that the translation of documents pursuant to Rule 66(A) of the Rules3 is limited to supporting material accompanying the Indictment, all prior statements obtained by the Prosecutor from the accused, witness statements and Rule 92 bis statements4. The Prosecution submitted that the above-mentioned Decision had not been followed as Tribunal practice5. It also submitted that Counsel for Mladen Naletilic never requested the disclosure of documents pursuant to Rule 66(B) of the Rules and that the Prosecutor, on her own initiative, made available to Defence Counsel seventeen binders of potential Prosecution exhibits.
  

The Trial Chamber decided inter alia that all the exhibits must be made available in a language the accused understands as well as in at least one of the official languages of the Tribunal at the time they are submitted to the Trial Chamber for admission. It further ruled that it is the responsibility of the party intending to submit the document to ensure that such translations are available.

The Reasoning

The Trial Chamber stated that although Rule 3(A) of the Rules provides that the working languages of the Tribunal are English and French it was "aware that the application of this Rule must be consistent with the right of the accused to a fair trial" set out in Article 21 of the Statute. It noted that the Prosecution had "provided Counsel for Mladen Naletilic with a copy in BCS of all material required pursuant to Rule 66(A) of the Rules" and that the Prosecutor had not been requested to disclose the seventeen binders referred to above but had done so with a view to facilitating the proceedings.

The Trial Chamber found that "neither Article 21 of the Statute nor Rule 3 of the Rules explicitly entitle the accused to receive all documents from the Prosecutor in a language he understands". It held that "the guarantees provided in Article 21(4) of the Statute do not extend to all documents, but only to evidence, which forms the basis of the determination by the Chamber of the charges against the accused; and that this right is ensured, inter alia, by the fact that all evidence admitted at trial is provided in a language the accused understands"6.

Latest Development

In the oral order of 13 November 2001, the Trial Chamber clarified its Decision of 18 October 2001 as follows:

(1) The documents which have to be translated are:

(a) All documents referring directly to facts which "constitute the grounds of the charges in the Indictment";
(b) All documents which "refer directly to one of the accused";
(c) All documents concerning "the specific area where the crimes were allegedly committed in the time frame set out in the Indictment."

(2) The documents which do not have to be translated are:

(a) "Official United Nations documents and reports";
(b) "Excerpts from books and other publications" publicly available;
(c) Documents which contain "background evidence", such as information which does not relate specifically and directly to the incidents, charges or accused as set out above7.

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1. Article 21(4)(a) of the Statute provides that "[i]n the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled […] in full equality […] to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him".
2. The Prosecutor v. Zejnil Delalic et al. ("Celebici Camp"), Case No. IT-96-21-T, Trial Chamber II, Decision on Defence Application for Forwarding Documents in the Language of the Accused, 25 September 1996 (hereinafter the "Celebici Decision").
3. "Subject to the provisions of Rules 53 and 69, the Prosecutor shall make available to the defence in a language which the accused understands
(i) within thirty days of the initial appearance of the accused, copies of the supporting material which accompanied the indictment when confirmation was sought as well as all prior statements obtained by the Prosecutor from the accused; and
(ii) within the time-limit prescribed by the Trial Chamber or by the pre-trial Judge appointed pursuant to Rule 65 ter, copies of the statements of all witnesses whom the Prosecutor intends to call to testify at trial, and copies of all written statements taken in accordance with Rule 92 bis; copies of the statements of additional prosecution witnesses shall be made available to the defence when a decision is made to call those witnesses."
4. See also The Prosecutor v. Dario Kordic & Mario Cerkez ("Lasva River Valley"), Case No. IT-95-14/2-A, Pre-Appeal Judge David Hunt, Decision on Motions to Extend Time for Filing Appellant's Briefs, 11 May 2001 (hereinafter the "Kordic & Cerkez Decision"), in which Judge Hunt considered that the obligation is "restricted to the disclosure of the statements of witnesses (both their ordinary statements and any statements to be tendered in accordance with Rule 92 bis), and then only when the intention to call those witnesses has been formed." He emphasised that "[t]he obligation imposed by Rule 66(A) does not include other material which is (or which may be) merely 'relevant' to an appellant's appeal" and stated that "[t]his obligation continues after judgment in relation to any witness whom the prosecution intends to call in proceedings following the judgment" (para. 7).
5. The Prosecution relied inter alia on the Kordic & Cerkez Decision. Dario Kordic and Mario Cerkez requested that the Rule 111 time limit in which they had to file their Appellant's Briefs be extended until the Judgement of the Trial Chamber became available in B/C/S. The Prosecution accepted a suspension of the time limit. Judge Hunt took into account the following five factors in assessing the relevance of a suspension: I - "The agreement between the parties that there should be a suspension of the time for filing their Appellant's Briefs does not ensure an acceptance by the Appeals Chamber of what has been agreed"; II - "Where the judgment is already available in a language which counsel for the accused speaks, it is not in the interests of justice that nothing should be done until the accused is able to read the judgment." Judge Hunt noted that "each of the appellants is represented by one counsel who is accepted by the Tribunal as being competent in the English language" and that "the Trial Chamber's judgment was given in the English language" (footnote 30); III - Regard must be had to the date contemplated for the availability of the translation of the Judgement in the language of the accused; IV - The length of the trial rarely constitutes "sufficient ground for an extension of time when […] counsel briefed on the appeal also appeared at the trial"; V - Regard must be had to the complexity of each case (paras. 18 and 19).
6. See the Celebici Decision, in which the Trial Chamber found 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" (para. 6). It also considered that the guarantees of Article 21(4)(a) of the Statute "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." The Trial Chamber held that "the rights of the accused are fully protected by ensuring that all evidence submitted at trial is provided in his language." It thus found 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." The Trial Chamber concluded that "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" (para. 8).
7. Transcripts, 13 November 2001, page 5575, line 24-page 5577, line 3. See also The Prosecutor v. Mika Muhimana, Case No. ICTR-95-1-B-I, Trial Chamber I, Décision relative à la requête de la Défense aux fins de traduction des documents de l’Accusation et des actes de procédure en kinyarwanda, langue de l’Accusé, et en français, langue de son Conseil, 6 November 2001, paras. 22, 23, 26 and 29.