Lack of translation

Notion(s) Filing Case
Appeal Judgement - 04.12.2012 LUKIĆ & LUKIĆ

262. Milan Lukić submitted the Logbook Entry to the Trial Chamber without a translation into one of the working languages of the Tribunal.[1] The Logbook Entry, which related to 14 June 1992, was also admitted without a translation as part of Prosecution Exhibit P68, which comprised the whole logbook.[2] The Appeals Chamber emphasises that it is incumbent on the party seeking to admit an exhibit to provide a translation where necessary.[3] Milan Lukić failed to provide such a translation. However, the Appeals Chamber notes that the Trial Chamber admitted the Logbook Entry into evidence, as Exhibit 1D39, without noting or commenting on the lack of translation.[4] From this point, the document was part of the trial record, and was therefore before the Trial Chamber. Moreover, the Trial Chamber had the duty to consider all the evidence before it.[5]

263. In the Trial Judgement, the Trial Chamber stated that it had admitted the Logbook Entry “inadvertently” and was unable to attach any weight to it without a translation into one of the working languages of the Tribunal.[6] However, in its summary of the evidence in the Trial Judgement, the Trial Chamber demonstrated that, even without a translation, it was aware that the Logbook Entry showed that Vasiljević was registered at the Višegrad Health Centre on 14 June 1992.[7] Moreover, the Trial Chamber found that it was able to attach probative weight to Prosecution Exhibit P68, which had also been admitted into evidence without an official translation, but the substance of which had been commented on by a Prosecution witness.[8]

264. In light of the foregoing, the Appeals Chamber finds that the Trial Chamber erred in failing to consider the substance of the Logbook Entry. However, the Appeals Chamber finds that this error has no impact.

[1] See Trial Judgement, para. 570.

[2] The logbook from the Višegrad Health Centre was initially admitted in its entirety without translation on 4 September 2008 as Exh. P68 (confidential) (see T. 1190 (4 September 2008)). On 10 September 2008, following the testimony of Vasiljević, the page from the logbook which comprises the Logbook Entry was admitted as Exh. 1D39 (see T. 1559-1561 (10 September 2008) (closed session)). This page had already been admitted as part of Exh P68 but was tendered by Milan Lukić as part of a set of documents in support of Vasiljević’s testimony that he was not present at Pionirska Street. Subsequently, on 27 October 2008, the Trial Chamber ruled that Exh. P68, as previously admitted, was no longer admitted in its entirety but that “the pages of the logbook which contain entries made on the 7th of June, 1992, [were]] admitted into evidence as Exhibit P68 under seal [and that] these pages in their redacted form [were]] admitted as Exhibit P70.” The Trial Chamber further clarified that “Exhibit 1D39 only comprises pages of the logbook which contain entries of 14th June 1992.” (T. 2766 (27 October 2008)). There was never an official translation submitted for any part of the logbook during trial.

[3] See 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, 27 September 1996, paras 6, 10.

[4] T. 1559-1561 (10 September 2008) (closed session); T. 2766 (27 October 2008).

[5] Cf. Halilović Appeal Judgement, para. 121, referring to Kvočka et al. Appeal Judgement, para. 23.

[6] Trial Judgement, para. 570.

[7] Trial Judgement, para. 439, referring to Logbook Entry.

[8] Trial Judgement, fn. 327. The Appeals Chamber notes that in relation to those portions of the logbook, witnesses discussed the contents of the pages and, to a certain extent, provided translations. However, the witness testimony was confined to discussing the specific patient and treatment on the corresponding page, and did not address specifically what the various columns meant (see Trial Judgement, fn. 327, referring to VG032, T. 1191-1193 (8 September 2008), VG133, T. 2963-2967 (28 October 2008)). Therefore, the Appeals Chamber does not accept Milan Lukić’s assertion that to the extent those portions of the logbook were translated, they also translated the Logbook Entry.

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