Lost in Translation

The law allowing the transfer of cases and evidence from the Hague tribunal to the Court of Bosnia and Hercegovina is full of inconsistencies and errors, Justice Report has learned.



The legal mistakes, which were accepted by the Bosnian government in 2004, could cost the court millions of marks and result in considerable lost court time. Experts say some mistakes come from bad translations and others from poor knowledge of domestic legislation.



In order for the Bosnian court's war crimes chamber to start working, it was necessary to adopt a whole set of new laws, many of which were written by foreign legal experts in English and their translations passed to members of parliament for adoption.



One of the most controversial and problematic concerns the procedure of accepting Hague tribunal evidence in Bosnian courts.



Article four of this law, however, allows judges panels to either accept or refuse evidence gathered in The Hague.



The Criminal Defence Department, OKO, which provides support to defence attorneys in the war crimes chamber, is all too aware of the inconsistencies and shortcomings of these laws.



Rupert Skilbeck, OKO director, told Justice Report it is very worrying that the law is so open to interpretation by panels of judges. "How one should act … hasn't been elaborated in sufficient detail. There are no guidelines to tell the judges how they should ... use ... evidence," he said.



Matias Hellman, representative of the tribunal in Bosnia, says it is up to the panels of judges to decide how and if they should take into account new facts in addition to what has been established in a previous procedure.



"However, it would be very worrying if facts established beyond reasonable doubt were to be changed radically and groundlessly," he said.



Lawyers for 11 defendants accused of the crime in Kravice near Srebrenica have already said they will not accept evidence transferred from The Hague, invoking the principle that evidence should be directly presented.



Defence attorney Stanko Petrovic, representing one of the 11 accused, says he opposes Hague evidence, because it could be prejudicial "and therefore make the trial pointless".



Like other defence attorneys in the Kravice case, Petrovic says the defence will insist on cross-examining the witnesses who appeared in The Hague should the Bosnian war crimes chamber decide to accept their statements and other evidence gathered by tribunal.



Other defence lawyers question the competence and credibility of the Hague court. Bosko Cegar, another defence attorney in the Kravice case, sees it as an "ad hoc tribunal whose decisions are relevant only in The Hague and therefore can't be relevant in other courts".



International experts, on the other hand, maintain that the tribunal observes the highest international standards and insist it is hard to question the validity of the evidence it gathers.



Edgar Chen, a legal expert of the Coalition for International Justice, CIJ, an organisation monitoring tribunal trials, believes transferred evidence should be accepted.



But he points out that the Bosnian war crimes chamber could also consider evidence not heard at the tribunal, citing the example of the video footage of the Scorpion Unit which is valid at trials held in Belgrade but not at the Hague trial of Slobodan Milosevic.



"Generally speaking, there should be no 'new' or 'contradictory' truths," he said. "If [the tribunal] has established that on 12 and 13 July 1995 the forces of the Bosnian Serb Army, VRS, were controlling the transport of women, children and the elderly by bus towards the territory controlled by Bosnian forces, such fact must be accepted by the [Bosnian court]," he explained.



"Let's hope that the [Bosnian court] will not find that these women, children and the elderly were taken by bus from Potocari in a process that was not controlled by the VRS. That would be news, contradictory to the facts established so far. I think that well-documented facts such as this one will not be challenged."



Though he did not deny that testing new evidence is a legitimate process in a trial, Chen said facts established before the Hague tribunal are regarded as proven beyond reasonable doubt.



"They have been gathered and stood in court after cross-examination by the defence," he said. "I hope there will be no manipulation or even room for manipulation with this. Therefore, judges should say 'this has been proved before the [tribunal] beyond reasonable doubt' and advise both sides to accept it."



Article four is not the only one causing confusion. An inaccurate translation of Article five has also triggered discontent and misunderstandings.



In English, it says that transcripts of testimonies and records of depositions "shall be admissible", leaving no room for different interpretations.



In the translation in local languages, the same article says the equivalent of "they may be used", a wording which allows different interpretations.



To add to the problem, Bosnian court regulations do not specify which version has priority.



There are no guidelines for the judges to follow when applying this law.



"The law does not tell them what to consider in the interest of justice," said Skilbeck.



"It is very worrying that a new law is so vague in how this legal system should be operated."



But the problems don't end there. A section pertaining to protected witnesses testimony given to the tribunal comes from British law and is inapplicable in Bosnia because it requires a jury, which do not exist in local system. Also, the English version and the one in local languages are different.



Skilbeck told Justice Report that OKO will be challenging the way the law operates both before Bosnia’s war crimes chamber and constitutional court.



"At the end of the day, the [war crimes chamber] will have to accept international standards, probably by borrowing the [tribunal] regulations," he predicted.



Justice Report is a BIRN publication.