The ICTY Trial Chamber delivered on 26 March Decision on Prosecution Motion Seeking Determination that the Accused understands English for the Purposes of the Statute and the Rules of Procedure and Evidence in Prosecutor v Radovan Karadžić. This decision inter alia concerns whether statements made on Opinio Juris by one of Karadžić’s legal advisers can serve as an evidence for establishing that Karadžić masters English language. Equally important, it may highlight dangers of blogging about one’s conversation with his/her client. The relevant part of Prosecution argument derives from paragraph 6 of this decision:
6. As a final contention in favour of the relief sought in the Motion, the Prosecution argues that the Accused has conversed with his legal associates, and participated in proceedings held before this Chamber and the Appeals Chamber, all in the English language. In support, the Prosecution refers to a web-log entry authored by the Accused’s pro bono legal adviser, Kevin John Heller, in which the latter described a meeting with the Accused on 8 January 2009, during which he conversed in English. Since 10 October 2008, the Accused has made submissions in English and has drafted correspondence in English. In addition, the Accused requested a verification of the English translation of one of his own submissions on the very day that he received that translation. The Prosecution further notes that the Accused gave evidence before the Appeals Chamber in the Krajisnik case partly in English. (footnotes omitted).
The Defence arguments are summarized in the below paragraph 8:
8. In his Response, the Accused argues that, in light of the 25 September and 25 November Decisions, this is the third time that “the Prosecution has sought to evade its responsibility to meet its disclosure requirements under Rule 66(A),” labelling the Motion as one for “rereconsideration., The Accused then submits that many of the arguments relating to his ability to understand English have already been raised in the Prosecution’s request for reconsideration of the 25 September Decision. The only additional evidence, according to the Accused, is that he spent a year of graduate studies in the United States; that he interacted with the international community in his official capacity, dealing with complex political negotiations; that he gave interviews in English to the international press; and that several individuals, including one of his legal advisers referred to his spoken English as “very good” or “excellent”. However, according to the Accused, save for the information coming from the Accused’s legal adviser, all this evidence was available to the Prosecution at the time of its request for reconsideration of the 25 September Decision. (footnotes omitted).
The ICTY Chamber analysed the relevant arguments in paragraph 19.
19. The Chamber notes the Accused’s argument that these clips merely show that he conversed in English “from time to time 14 to 17 years ago” and that there is no evidence that he has a sufficient understanding of English at present. While the Chamber has no direct knowledge of the Accused’s ability to use English at the time he was at Columbia University, his capacity for English, as demonstrated in these clips, is consistent with what the Chamber would expect of someone studying at an English language university. It is clear on the evidence presented to the Chamber that, in the intervening 14 years, that capability for English has not disappeared or been diminished. For example, the Accused’s own pro bono legal adviser, Kevin John HelIer, made assertions to that effect when he recounted a meeting with the Accused during which they talked about world politics as well as “more substantive matters” relating to the case, all in the English language. In addition, during his testimony in the Krajisnik Appeal hearing, the Accused was capable of reading out a number of excerpts in English, and even chose to comment on one of them in that language, exhibiting immediate and perfect understanding of what those excerpts meant. Having listened to the audio recording of the Accused’s testimony in that case, the Chamber is satisfied that he can read and comprehend English well. (footnotes omitted).