Friday, October 10, 2008

ECCC’s translation obligations to the defense

Sincere thanks to IntLawGrrls for inviting me to guest blog.
The Extraordinary Chambers in the Courts of Cambodia is engaged in an ongoing battle over what documents the court is required to translate for defendants and their attorneys. The saga of the ECCC’s translation difficulties got interesting in April, when defense attorney Jacques Vergès (below left) announced during a hearing that he would not participate because every evidentiary document in his client’s 16,000-page file had not been translated into French. Vergès then stormed out of the courtroom and opined to reporters,

'This never happens, except in dictatorships.'

Vergès has a history of using unconventional tactics and media appeals to try to undermine the legitimacy of various courts.
To this latest effort, the Co-Investigating Judges of the ECCC (above left) responded with a mild reprimand, reminding Vergès that he has a Cambodian co-counsel who can understand the documents at issue. Rule 22(1) of the ECCC’s Internal Rules calls for collaboration between the Cambodian and foreign co-counsel. The judges also pointed out that all filings in the case had been translated into the court’s three working languages — Khmer, English, and French — as required by the Internal Rules.
In June, the judges issued a longer decision on the issue, the Order on Translation Rights and Obligations of the Parties. The Order states that the court is not required to translate every single document in the defendants’ case files into the language of the defendants’ foreign attorney, although it must do so for certain documents, as required by the court’s founding documents, Internal Rules, and international standards of fairness. The Order grants attorneys the same translation rights into working languages of the court as defendants, requiring translation of the following documents:
► indictment;
► proof on which indictment relies;
► introductory and final submissions of the co-prosecutors;
► footnotes and indexes of factual elements on which the introductory and final submissions rely;
► filings; and
► judicial decisions and orders.
Defense teams also are to be provided with translators, and will be expected to use the capacity of their teams to address linguistic difficulties beyond translation of the documents named above.
The Order’s holding that the court is not obligated to translate every document is well supported. It adheres to the ECCC Law, Internal Rules, and Practice Directions. It is not clear from the language whether the Order provides for translation of evidence adduced at trial in addition to the documents listed above. Should translation of such evdience also be included, the Order would guarantee broad translation rights into the working languages of the tribunal for defendants and attorneys, in keeping with what other international courts have provided (including the International Criminal Tribunal for Rwanda, the International Criminal Tribunal for the former Yugoslavia, the International Criminal Court, and the European Court of Human Rights, as well as the United Nations' Human Rights Committee). In several respects the Order appears to grant to the defense broader rights than other international tribunals have done.
Despite this decision’s adherence to international standards, Vergès continues to insist that the court translate his client’s entire case file into French. His defense team’s July appeal called the Order an “acknowledgement of failure,” because the court took into account the fact that if every single document were to be translated, the defendant’s right to an expeditious trial would be jeopardized. But the ECCC is by no means the first court to take into account that as translation requirements increase, the speed of proceedings decreases. (See here and here and here.)
In its July appeal against the Order, Vergès’ defense team made a point that deserves attention. It wrote that most of the case law cited by the ECCC’s Order on Translation Rights derived from the jurisprudence of common law-based international courts, while the ECCC is supposed to follow civil law procedure. The appeal posited that fundamental differences in the way the two systems handle evidence in the pre-trial and trial phases make common law evidence translation practices inapplicable to a civil law court.
The ECCC Order on Translation Rights does rely on decisions from the ICTY and ICTR, which do borrow heavily from common law practice; however, the Order also cites to the European Court of Human Rights and the Human Rights Committee, which have reviewed the translation practices of European civil law courts. Both of those sources have held (see here and here) that fairness does not require translation of all evidentiary documents in a defendant’s case file.
Additionally, the Order on Translation Rights cites the ICC, which has held that a detailed description of the charges and a list of evidence are all the court is required to translate in the pre-trial phase. The ICC’s procedure contains civil law elements that arguably make it sufficiently parallel to the ECCC that its translation practices are pertinent.
Based on my own research, what Vergès is requesting is unprecedented. Translation of thousands of pages of documents will require substantial court resources and slow down the proceedings. Therefore, it is crucial that the Pre-Trial Chamber’s decision on this appeal protects defendants’ rights while not wasting court resources by providing translation beyond what fairness requires.


Marjorie Florestal said...

Welcome Sadie! Thanks for this great post, which reflects both the practical demands on the Chamber's resources and concerns about justice and fairness. Well done.

Malika said...

Thanks for a great post. I was working at the ECCC over the summer and the amount of work into translating documents is an exerting process. I think it's a daring request from the Defense counsel and I hope that the PTC balances the quality of the translation for the expediency of the trial in their decision.