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1、DOCUMENTATION CENTER OF CAMBODIAMAGAZINE: SEARCHING FOR THE TRUTH, OCTOBER, 2008An Assessment of the ECCC Order on Translation Rights and ObligationsBy Sadie BlanchardDC-Cam Legal Associate Summer 2008Yale Law School 2010The Extraordinary Chambers in the Courts of Cambodia (ECCC) is engaged in an on
2、going battle over what documents to prioritize for translation for defendants and their attorneys. The saga of the ECCCs translation difficulties got interesting in April, when Jacques Vergs, the French defense attorney for Khieu Samphan, announced during a hearing that he would not participate beca
3、use every evidentiary document in his clients 1,600-page file had not been translated into French. The ECCC Co-Investigating Judges (CIJ) responded to Vergs protest with a mild reprimand, reminding the attorney that he has a Cambodian co-counsel who can understand the documents at issue. Rule 22(1)
4、of the ECCCs Internal Rules calls for collaboration between the Cambodian and foreign co-attorneys. The CIJ also pointed out that, as required by the Internal Rules, all case filings (documents submitted by a party for the Courts consideration and action) had been translated into the Courts three wo
5、rking languagesKhmer, English, and French. In June, the CIJ issued a longer decision on the translation issue: the Order on Translation Rights and Obligations of the Parties (“the Order”). The Order holds that the Court is not required to translate every single document in the case files into the la
6、nguage of the charged persons foreign attorneys, but only certain documents required by the Courts founding documents, Internal Rules, and international standards of fairness. The Order grants attorneys the same translation rights as charged persons, requiring translation for both of a named set of
7、the most important documents, including the indictment, proof on which the indictment relies, and filings, among other documents. It also provides the defense teams with translators and states that they must use their capacity to address linguistic difficulties beyond translation of the core set of
8、listed documents. The Orders finding that the Court is not obligated to translate every document into all working Court languages is well supported. First, it does not conflict with the ECCCs Statute, Internal Rules, and Practice Directions. The ECCC Law and Rules do not expressly provide for docume
9、nt translation for either accused or attorneys. The Practice Direction on Filing of Documents (Practice Direction) provides the only explicit rules on document translation. It addresses only filings and says nothing about evidentiary documents in the case file, which are the main focus of the curren
10、t translation battle.On the other hand, it is not clear on its face whether the Order requires, in addition to the named documents that must be translated, translation of evidence adduced at trial. The ECCC will have to clarify this point. If the Court does grant translation of such evidence, the Or
11、der would guarantees broad translation rights into the working languages of the tribunal for defendants and attorneys, in keeping with what other international courts such as the International Criminal tribunals for Rwanda and the former Yugoslavia (ICTR, ICTY) and human rights bodies have supported
12、. Because the ECCC Statute, Rules, and Practice Directions do not clearly define the scope of the right to document translation for accused and their attorneys, it is necessary to look to international standards to determine the appropriate procedure. This approach is in keeping with Article 33 new
13、of the ECCC Law, which provides that the Court should seek guidance in international criminal procedure where the existing procedure does not exist or is unclear on an issue.Because the law addressing translation for defendants and the law addressing translation for attorneys diverge, this article w
14、ill discuss the two separately.A. Translation Rights of DefendantsThe ECCC Law and Rules do not explicitly provide for document translation for defendants, but they do provide for “the use of an interpreter” in Article 35 of the Law and Rule 30 of the Rules. Other international courts have held a ri
15、ght to “interpretation” to encompass a right to translation of some documents. The ECCC Practice Direction on Filing of Documents provides the only explicit rules on providing documents in the language of the accused, requiring that all filings be in the charged persons native language of Khmer in a
16、ddition to one other official language.Founding documents of other international courts and human rights instruments have been similarly vague regarding the scope of the right to translation. Courts have generally pared the issue down to the question of what translations are necessary to meet the requirements of fairness. For example, the European Court of Human Rights (ECHR) has said that the right includes “translation or
