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.[1] 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.”[2] 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”,[3] “provide[s] the best evidence of the applicable legal threshold in international law.”[4]

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.[5] 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[6] and that the Appellant does not contest this standard.[7] 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.[8] 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.[9] 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.”[10] 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.[11]

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.[12]

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.[13] 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; […][14]

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”.[15] It proceeded to consider the materials submitted to it by the Prosecution as evidence of the Appellant’s understanding of the English language[16] before concluding that the Appellant understands English “for the purposes of the Rules and the Statute”.[17] 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.”[18] 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”[19] such as his ability to converse with his English speaking legal advisers,[20] to respond to questions regarding war crimes allegations[21] and exhibits placed before him,[22] and to draft or approve motions and other submissions filed by him.[23] 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. […]

56.     The Tribunal’s Statute provides that its working languages are English and French,[1] 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,[2] and to the free assistance of an interpreter if he cannot understand or speak the language of the Tribunal.[3]  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.