Right to use own language
|Decision on Understanding English - 04.06.2009||
10. The Appellant submits that the Trial Chamber failed to articulate the applicable law on “the legal threshold differentiating an accused who does not understand English for the purposes of the Tribunal’s Statute and Rules, from one who does” and as such failed to correctly distinguish the legal standard applicable to an accused represented by counsel and a self-represented accused. In this respect, he submits that the appropriate standard is the one set out in the Tolimir Appeal Decision that an accused must understand a language “sufficiently in order to allow for the effective exercise of his right to conduct his defence.” He further submits that the Rome Statute of the ICC which sets out that the language to be used is one which the accused “fully understands and speaks”, “provide[s] the best evidence of the applicable legal threshold in international law.”
11. With respect to the Appellant’s reliance on the Rome Statute, the Appeals Chamber recalls that it is not bound by the Rome Statute or Rules of Procedure and Evidence of the ICC, although it may seek guidance from them when appropriate. In the present case, the Appeals Chamber notes that the Tolimir Appeal Decision has already set out the Appeals Chamber’s interpretation of “a language which [the accused] understands” in Article 21(4)(a) of the Statute and that the Appellant does not contest this standard. Furthermore, the Appeals Chamber notes that the Tribunal’s standard on language ability is consistent with other international human rights instruments setting out fair trial rights. In light of this, the Appeals Chamber does not consider it necessary to engage in an analysis of the ICC’s standard regarding the level of language ability required of an accused.
12. As in the current case, the issue in the Tolimir Appeal Decision was the scope and meaning of the right to receive materials in a language that the accused understands in the context of a case with a self-represented accused. The Appeals Chamber in Tolimir considered the meaning of Article 21(4)(a) of the Statute and Rule 66(A) of the Rules and found that the issue “hinges on understanding and not preference.” It continued:
These provisions, when read with the other minimum guarantees provided in Article 21(4) of the Statute, create an obligation to provide relevant material in a language which the accused understands sufficiently in order to allow for the effective exercise of his right to conduct his defence.
The determination of whether an accused possesses a sufficient level of understanding is a factual question and must be made on a case-by-case basis.
13. While the Impugned Decision did not expressly refer to the Tolimir Appeal Decision, the Trial Chamber considered the same provisions in the Statute and the Rules and applied an equivalent standard. After noting Rule 3(A) of the Rules, which provides that the “working languages of the Tribunal shall be English and French”, the Trial Chamber recalled that this rule must be consistent with the right of an accused to a fair trial. In this respect, it quoted from Article 21(4) of the Statute which provides, inter alia, that:
[i]n 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; […]
More particularly, it recalled that the materials disclosed to an accused pursuant to Rule 66(A) of the Rules must be “in a language which the accused understands”. It proceeded to consider the materials submitted to it by the Prosecution as evidence of the Appellant’s understanding of the English language before concluding that the Appellant understands English “for the purposes of the Rules and the Statute”. In considering whether the Appellant understands English “for the purposes of the Rules and the Statute” with reference to Article 21(4) of the Statute and Rule 66(A) of the Rules, the Trial Chamber was in effect inquiring as to whether the Appellant “understands sufficiently in order to allow for the effective exercise of his right to conduct his defence.” This is demonstrated by the fact that the Trial Chamber considered not merely the Appellant’s general English language abilities but specifically his ability to undertake tasks required “in the context of a complex criminal trial” such as his ability to converse with his English speaking legal advisers, to respond to questions regarding war crimes allegations and exhibits placed before him, and to draft or approve motions and other submissions filed by him. This shows that although the Trial Chamber did not explicitly refer to the Tolimir Appeal Decision, it applied the same standard. Accordingly, the Appeals Chamber finds no error in the legal standard applied by the Trial Chamber.
15. With regard to the Appellant’s submission that the evidence relating to his language abilities relied on by the Trial Chamber was outdated, the Appeals Chamber notes that while evidence from many years ago may not be conclusive of present language abilities, it is relevant. In this case, however, while the Trial Chamber took into consideration evidence from 14 to 17 years ago, it also considered more recent evidence. […]
 Appeal [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.3, Appeal of Trial Chamber’s Decision on Languages, 29 April 2009], para. 42.
 Appeal, para. 45, quoting Tolimir Appeal Decision [Prosecutor v. Zdravko Tolimir, Case No. IT-05-88/2-AR73.1, Decision on Interlocutory Appeal Against Oral Decision of the Pre-Trial Judge of 11 December 2007, 28 March 2008], para. 15 (The Appellant cites paragraph 6, however, the quote is actually located in paragraph 15.).
Rome Statute, Article 67(1).
 Appeal, para. 46.
 See Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T, Public Version of the Confidential Decision on the Prosecution’s Motion to Grant Specific Protection Pursuant to Rule 70, 25 July 2002, para. 17, citing Prosecutor v. Anto Furundžija, Case No. IT-95-17/1-T, Judgement, 10 December 1998 (“Furundžija Trial Judgement”), para. 227; Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Judgement, 15 July 1999, para. 223. See also Prosecutor v. Blagoje Simić, Miroslav Tadić and Simo Zarić, Case No. IT-95-9-T, Judgement, 17 October 2003, fn. 212.
 Tolimir Appeal Decision, para. 15.
 Appeal, para. 45; Reply, para. 8(iii).
 See International Covenant on Civil and Political Rights, Article 14(3); European Convention on Human Rights, Article 6(3); American Convention on Human Rights, Article 8(2). See also Statutes of the International Criminal Tribunal for Rwanda, Article 20(4) and the Special Court for Sierra Leone, Article 17(4).
 Tolimir Appeal Decision, para. 14.
 Tolimir Appeal Decision, para. 15.
 Impugned Decision [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-PT, Decision on Prosecution Motion Seeking Determination that the Accused Understands English for the Purposes of the Statute and the Rules of Procedure and Evidence, 26 March 2009], para. 11.
 Impugned Decision, paras 12-13, quoting Rule 66(A) of the Rules.
 Impugned Decision, paras 17-21.
 Impugned Decision, para. 23.
 See Tolimir Appeal Decision, para. 15.
 Impugned Decision, para. 20. See also Impugned Decision, paras 18-21.
 Impugned Decision, paras 19, 20.
 Impugned Decision, para. 18.
 Impugned Decision, para. 19.
 Impugned Decision, para. 20.
Rule 66(A) ICTY Rule Rule 3(B);
|Decision Regarding Use of Languages - 28.03.2008||
14. The Appeals Chamber notes at the outset that the Appellant’s right to the use of his mother tongue in his written or oral communications with the International Tribunal’s organs is not in dispute here. Rather, the contentious issue on appeal is limited to the question of whether the delivery to the Appellant, who is representing himself, of materials in B/C/S and in Latin script satisfies the guarantees provided by Article 21(4)(a) of the Statute and Rule 66(A) of the Rules in this case. The Appeals Chamber considers that it does.
15. The Appeals Chamber finds that the Impugned Decision correctly interprets the governing law in finding that the
right to receive relevant material in this Tribunal in a language [the accused] can understand, […] does not translate into a right for an accused, regardless of his or her background, education, experience, to come before this Tribunal and demand the production of documents in any language or script that he or she chooses.
This is consistent with the plain language of Article 21(4)(a) of the Statute and Rule 66(A) of the Rules which, as the Pre-Trial Judge aptly points out, hinges on understanding and not preference. These provisions, when read with the other minimum guarantees provided in Article 21(4) of the Statute, create an obligation to provide relevant material in a language which the accused understands sufficiently in order to allow for the effective exercise of his right to conduct his defence. Article 21 of the Statute provides that the accused has the right to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him and to have the free assistance of an interpreter if he cannot understand or speak the language used in the International Tribunal. This language reproduces the relevant provisions of Article 14(3)(a) and (f) of the International Covenant on Civil and Political Rights. Whether an accused possesses the sufficient level of understanding is of course a question of fact to be decided on a case-by-case basis.
 In coming to terms with disputes on the proper qualification of the languages used in the region of the former Yugoslavia, and in particular in the Republics of Bosnia-Herzegovina, Croatia, and Serbia, the International Tribunal has often adopted the acronym “B/C/S” to identify the Bosnian, Croatian, and Serbian languages (see, among others, Kordić and Čerkez Appeal Judgement, List of Abbreviations). In the region of the former Yugoslavia, the terms “hrvatskosrpski” and “srpskohrvatski” were used, with the Cyrillic script prevalent in Serbia, the Latin script in Croatia and both used in Bosnia-Herzegovina. Cf., for example, Article 4 of the Bosnia-Herzegovina Constitution of 1974 with Article 8 of the Constitutions of the Republic of Serbia (1990 and 2001) and Article 12 of that of the Republic of Croatia (1990, with amendments).
 [Prosecutor v. Zdravko Tolimir, IT-05-88/2-PT, T. 114 (“Impugned Decision”)]
 Impugned Decision, T. 114.
 See, for example, Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Decision on Defence Application for Forwarding the Documents in the Language of the Accused, 25 September 1996 (filed on 27 September 1996), paras. 6-10; Prosecutor v. Paško Ljubičić, Case No. IT-00-41-PT, Decision on the Defence Counsel’s Request for Translation of All Documents, 20 November 2002, pp. 2-3.
 See also the explanations provided by the Human Rights Committee in this respect: “The specific requirements of subparagraph 3 (a) may be met by stating the charge either orally or in writing, provided that the information indicates both the law and the alleged facts on which it is based” and “Subparagraph 3 (f) provides that if the accused cannot understand or speak the language used in court he is entitled to the assistance of an interpreter free of any charge. This right is independent of the outcome of the proceedings and applies to aliens as well as to nationals. It is of basic importance in cases in which ignorance of the language used by a court or difficulty in understanding may constitute a major obstacle to the right of defence.” (General Comment No. 13: Equality before the courts and the right to a fair and public hearing by an independent court established by law (Art. 14)).
Article 20(4)(d) ICTY Statute Article 21(4)(a);
Article 21(4)(d) ICTR Rule Rule 3(B);
Rule 66(A) ICTY Rule Rule 3(B);
|Decision on Legal Aid - 07.02.2003||
KVOČKA et al.
56. The Tribunal’s Statute provides that its working languages are English and French, but it also provides that, in the determination of the charges upon which he is being tried, an accused is entitled to be informed of the nature and cause of the charge against him in a language he understands, and to the free assistance of an interpreter if he cannot understand or speak the language of the Tribunal. None of these provisions support a right in an accused person to a translation of a judgment or decision of the Tribunal into a language which he understands, but it is common practice for at least some allowance to be made in relation to the times within which various steps have to be taken in an appeal against such a judgment where it is necessary for an accused who does not speak the language in which the judgment has been issued to play a significant part in that step. It is therefore all the more important for an accused who does not speak the language in which a decision has been issued, and who is unrepresented, to have a translation of that decision in order to determine whether he should challenge that decision and to formulate the documents necessary for that purpose.
 Statute, Article 33.
 Ibid, Article 21.4(a).
 Ibid, Article 21.4(f).
|ICTR Statute Article 31 ICTY Statute Article 33|