IN THE TRIAL CHAMBER
Before: Judge Adolphus G. Karibi-Whyte, Presiding
Judge Elisabeth Odio Benito
Judge Saad Saood Jan
Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh
Decision of: 8 July 1997
ZEJNIL DELALIC & OTHERS
Ex Parte ZDRAVKO MUCIC also known as "PAVO"
DECISION ON THE MOTION EX PARTE BY
THE DEFENCE OF ZDRAVKO MUCIC CONCERNING THE ISSUE OF A SUBPOENA TO AN INTERPRETER
Counsel for the Accused
Mr. Zeljko Olujic, Mr. Micheal Greaves for Zdravko Mucic
I. FACTUAL BACKGROUND
1. On the 18th, 19th and 20th March 1996, the second accused in the present proceedings, Zdravko Mucic was interviewed by investigators of the Office of the Prosecutor (the "Prosecution") in Vienna, Austria. Ms. Alexandra Pal who is an employee of the Conference and Language Services Unit of the International Criminal Tribunal for the Prosecution of Persons Responsible for Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991 (the "International Tribunal") was present throughout the interviews. She acted as an interpreter.
2. On 2 June 1997, a motion ex parte was filed on behalf of Zdravko Mucic seeking an order to compel Ms. Alexandra Pal to testify as a witness for his defence (the "Defence"). The reason for this application is, according to the Defence, that there was a contravention of the provisions of Rules 42 and 43 of the International Tribunals Rules of Procedure and Evidence (the "Rules") during the interview of Mr. Mucic by the Prosecution. The Defence allege that Mr. Mucic, having earlier insisted on legal assistance at his interview, suddenly changed his mind and agreed to be interviewed without legal assistance. This change in his position is alleged by the Defence to be suspicious and, they claim, resulted from a conversation between Mr. Mucic and members of the interview team, before the commencement of the interview proper.
3. At the commencement of the second interview on 19th March, Mr. Abribat, a member of the Prosecution interviewing team (the other member of which was Mr. DHooge), opened by referring to an earlier conversation ("the Conversation") during which Mr. Mucic had consented to being interviewed without legal assistance. Mr. Abribat asked whether his position remained the same. Mr. Mucic answered that he did not need legal assistance. It is the Conversation, prior to the actual interview that the Defence contends is suspicious.
4. The Defence states that Ms. Alexandra Pal was the interpreter in all oral communications between Mr. Mucic and the interview team. The record of the Conversation between the interview team and Mr. Mucic is not, however, contained in the record of the proceedings of the interviews. Since Ms. Alexandra Pal must have been present at the time of the Conversation, when things might have been said which induced Mr. Mucic to agree to being interviewed without legal assistance, she is, in their view, a witness or potential witness for the Defence as to what took place at that time.
5. Concisely stated, the position of the Defence is that where an omission is alleged in the record of proceedings of an interview in which an interpreter has participated, or where such record of proceedings of an interview is alleged to be incomplete, the interpreter is a witness or potential witness as to whether there was in fact such omission or gap and as to what in fact occurred during that time.
II. APPLICABLE PROVISIONS
6. A determination of the issues involved in this application requires analysis of the relevant Articles of the Statute of the International Tribunal (the "Statute") and the relevant Rules. The following provisions of these texts are applicable.
Investigation and preparation of indictment
3. If questioned, the suspect shall be entitled to be assisted by counsel of his own choice, including the right to have legal assistance assigned to him without payment by him in any such case if he does not have sufficient means to pay for it, as well as to necessary translation into and from a language he speaks and understands. (Emphasis added.)
. . . .
Rights of the accused
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:
. . .
(f) to have the free assistance of an interpreter if he cannot understand or speak the language used in the International Tribunal;
. . . .
Rights of Suspects during Investigation
(A) A suspect who is to be questioned by the Prosecutor shall have the following rights, of which he shall be informed by the Prosecutor prior to questioning, in a language he speaks and understands:
(i) the right to be assisted by counsel of his choice or to have legal assistance assigned to him without payment if he does not have sufficient means to pay for it;
(ii) the right to have the free assistance of an interpreter if he cannot understand or speak the language to be used for questioning;
. . . .
Initial Appearance of Accused
Upon his transfer to the seat of the Tribunal, the accused shall be brought before a Trial Chamber without delay, and shall be formally charged. The Trial Chamber shall:
(i) satisfy itself that the right of the accused to counsel is respected;
(ii) read or have the indictment read to the accused in a language he speaks and understands, and satisfy itself that the accused understands the indictment;
(iii) call upon the accused to enter a plea of guilty or not guilty on each count; should the accused fail to do so, enter a plea of not guilty on his behalf;
Solemn Declaration by Interpreters and Translators
Before performing any duties, an interpreter or a translator shall solemnly declare to do so faithfully, independently, impartially and with full respect for the duty of confidentiality.
At the request of either party or proprio motu, a Judge or a Trial Chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial.
7. An examination of Article 18(3) of the Statute and the Rules discloses the important position of the interpreter in the administration of justice in the International Tribunal. The interpreter, though nowhere defined, fulfils a crucial role in the investigation and trial process. The interpreter is an indispensable and invaluable element in the investigation of a suspect and an essential component of the trial process.
8. It is a fundamental right of a suspect or an accused person to be informed promptly and in detail, in a language which he understands of the nature and cause of the charge against him. (See Article 21) It follows, therefore, that where the suspect or accused cannot speak or understand the language used in the International Tribunal, the free assistance of an interpreter shall be provided. (See Article 21(4)(f))
III. DEFINITION OF THE WORD "INTERPRETER"
9. As the word "interpreter" is not defined in the Statute or Rules, it is permissible to resort to the ordinary dictionary meaning of the word within this context. The Concise Oxford Dictionary of Current English (Seventh Edition 1983) provides inter alia that an interpreter is "one whose office it is to translate the words of persons speaking different languages, [especiallyC orally in their presence". On this basis, an interpreter may be defined as one who interprets from either an official or un-official language of the International Tribunal into the official languages of the International Tribunal and vice versa in judicial proceedings or proceedings related thereto.
IV. ANALYSIS OF THE STATUS AND DUTY OF THE INTERPRETER
10. The interpreter is not one of the parties to the proceedings. He or she is an officer of the International Tribunal, and for the purposes of providing interpretation before the Trial Chamber, an officer of the Trial Chamber. Similarly, where the interpreter functions in related judicial proceedings, he or she is an officer of the International Tribunal. As such, the interpreter has the status of an impartial third party in furtherance of the administration of justice. By virtue of Rule 76, the interpreter, before embarking on his or her duties, is required to make a solemn declaration to interpret faithfully, independently and impartially and with full respect for the duty of confidentiality. Hence, the duties of the interpreter in relation to the parties are circumscribed by these obligations.
11. The interpreter would, therefore, seem to be in a unique position and his or her services are available to both parties. At the same time the interpreter, though relied upon in order to constitute the record of all proceedings, is not responsible for its authentication. The interpreter is not required to keep a record of the proceedings he interprets or translates. The function of the interpreter is merely to pass on to the Trial Chamber, for the benefit of the parties or to the parties directly, whatever is said during the proceedings. He/she is merely the means through which the parties and the Trial Chamber are made to understand each other and to follow the proceedings.
V. THE APPLICATION UNDER RULE 54
12. The application is brought under Rule 54, the provisions of which have already been reproduced in this decision. Implicit in Rule 54 are the conditions to be satisfied before an application under the Rule can be granted. The applicant should show that the order is necessary for the purposes of investigation. Alternatively, it must be shown that it is necessary for the preparation or conduct of the trial. The satisfaction of either of these conditions which are not cumulative, will enable the grant of an application for an order under Rule 54.
13. The test applied by Judge Antonio Cassese, President of the International Tribunal, in Prosecutor v Zejnil Delalic et al, Decision on the Prosecutors Motion for the Production of Notes Exchanged Between Zejnil Delalic and Zdravko Mucic, (IT-96-21-T), 11 November 1996, is as follows: (a) an order of the International Tribunal must be necessary for the Prosecutor to obtain such material; and (b) the material being sought must be relevant to an investigation or prosecution being conducted by the Prosecutor (in the instant case, investigations being conducted by the defence). The gravamen of the Rule according to the Presidents Decision is whether it is necessary (not merely useful or helpful) for the purpose of the investigation or for the preparation or conduct of the trial. The applicant should demonstrate that there is no other way to obtain the evidence sought. The Trial Chamber considers this interpretation useful in the present case.
14. The Defence contends that it is presently unable to complete its investigation into what took place in Vienna during the questioning of Mr. Mucic in March 1996. It is only after investigating this issue that it contends it will it be in a position to properly present its case and cross-examine witnesses Abribat, DHooge and Gschwendt (a member of the Austrian Police Force). The complaint of the Defence is posited essentially on the allegation of completeness vel non of the record of the interrogation of Mr. Mucic. Messrs. Abribat, DHooge and Gschwendt, the Defence claims, were also present at the alleged interrogation and it has not been denied that these witnesses are capable of giving evidence as to whether there was any unrecorded interrogation and as to the nature of that interrogation. If the Defence establishes that there was in fact an interrogation, but the record of proceedings does not reflect what happened, the Trial Chamber could draw the proper and legitimate inference with regard to the omission.
15. The Trial Chamber is not persuaded by the contention of defence counsel that the only way to fill the gap created by any omissions in the proceedings is through testimony of the interpreter. The suggestion made to counsel during oral argument that the issue can be ascertained and the omission rectified through proper cross-examination of the other parties present during the alleged questioning was rejected by him on the presumption that, being witnesses for the prosecution, they are not likely to be truthful against their interests.
16. The Trial Chamber is not satisfied that the Defence has established that there is indeed an omission in the record of proceedings of the interview of Mr. Mucic. The Defence has alleged an unrecorded interrogation and founded its allegation on suppositions of what might have been said or done therein. This is clearly not a satisfactory ground on which to base the application. There is no undisputed evidence of the "previous conversation" alleged to have taken place. In an ex parte application, the facts relied upon should not be in dispute. In the instant case we have only the ipse dixit of the applicant, which could be rebutted. The Trial Chamber is not satisfied that, on the evidence before it, an order is necessary for investigation into the evidence of whether there was a "previous conversation" and the context of such a conversation.
VI. THE POSITION OF THE INTERPRETER
17. We have already defined the term "interpreter" and examined their functions. There is no doubt that, if such a "previous conversation" took place, Alexander Pal acted as interpreter between the interview team and Mr. Mucic and should be able to give evidence of the incident. However, this would depend on one of the following factors. First, there should be a legal duty on Ms. Alexander Pal to make a record of the interpretation between the parties; secondly, in the interest of justice, there should be no other way of obtaining the evidence sought other than through the testimony of the interpreter; or thirdly, the determination of the issue should depend entirely on the evidence to be given by the interpreter.
18. The administration of justice is deliberately transparent, to protect essential interests. Such transparency is also intended to ensure public confidence. Accordingly, the aphorism that justice should be done and manifestly be seen to be done, concerns the participation of all the functionaries involved in the adjudicatory process. The considerations of public policy which ensure confidentiality and protect privileged situations such as dealings between counsel and client and amongst jurors, is based on the principle that the stream of justice should be kept pure and undefiled from extraneous factors or fear or prejudice arising from the transaction between the parties. It is on the same hypothesis that judicial functionaries such as clerks or registrars of courts should be protected from matters arising from their official duties.
19. The interpreter, before embarking on his or her duties in whatever capacity as translator, interpreter before the Trial Chamber, or interpreter between the investigators and suspects or accused, makes a declaration under Rule 76, or similar undertaking upon taking office. The essence of the declaration is to ensure the maintenance of the position of impartiality owed to the parties which is an essential prerequisite of the interpreters function. The declaration emphasises the independence of the interpreter from either party in the proceedings and the confidentiality of the subject matter interpreted. The interpreter or translator merely passes information to either party of what the other has said in the proceedings and the fact that he or she has no duty to keep a record of what is said by either party makes his/her position extremely difficult if invited to testify as to what exactly was said.
20. It would not only be undesirable but also invidious to compel an interpreter into the arena of conflict on behalf of either party to the proceedings, for the determination of an issue arising from such proceedings. It should not be encouraged where other ways exist for the determination of the issue. The interpreter cannot be relied upon to testify on the evanescent words of his interpretation in the proceedings between the parties. It is also an important consideration in the administration of justice to insulate the interpreter or other functionaries of the International Tribunal from constant apprehension of the possibility of being personally involved in the arena of conflict, on either side, in respect of matters arising from the discharge of their duties. On both these grounds, the interests of justice frowns upon any of the parties being able to call an interpreter as a witness.
For the foregoing reasons, the TRIAL CHAMBER, being seised of the motion ex parte filed by the Defence,
PURSUANT TO RULE 54,
HEREBY DENIES the motion ex parte.
Done in both English and French, the English text being authoritative.
Adolphus Godwin Karibi-Whyte
Dated this eighth day of July 1997
At The Hague
[Seal of the Tribunal]