European Scrutiny Committee Contents

11 Interpretation and translation rights in criminal proceedings

(30783) 11917/09 COM(09) 338

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Draft Council Framework Decision on the right to interpretation and to translation in criminal proceedings

Commission staff working document: Impact Assessment accompanying the proposal for a Framework Decision

Commission staff working document: Summary of the Impact Assessment

Legal baseArticle 31(1)(c) EU
Document originated8 July 2009
Deposited in Parliament16 July 2009
Basis of considerationEM of 22 July 2009
Previous Committee ReportNone; but see HC 41-xxii (2006-07), chapter 6 (16 May 2007); HC 41-xii (2006-07), chapter 7 (7 March 2007); and see HC 34-xl (2005-06), chapter 7 (1 November 2006); (27268) 15432/06 HC 34-xxxiv (2005-06) chapter 15 (5 July 2006); HC 34-xxvi (2005-06) chapter 14 (26 April 2006); HC 34-xxi (2005-06), chapter 18 (8 March 2006)
To be discussed in Council23 October 2009
Committee's assessmentLegally important
Committee's decisionNot cleared; further information requested


11.1 This proposal for a Council Framework Decision aims to set common minimum standards with respect to the right to interpretation and translation in criminal proceedings throughout the European Union. The proposal is envisaged as a first step in a series of measures designed to replace the Commission's 2004 proposal for a Council Framework Decision on certain procedural rights in criminal proceedings,[32] which was withdrawn in June 2007 after Member States failed to reach agreement. The Commission hopes that a step-by-step approach to procedural rights will be viewed as a more acceptable way to proceed; such an approach (according to the Commission) will also gradually contribute to enhancing mutual trust.

11.2 This proposal should therefore be considered as part of a comprehensive package of legislation which will seek to provide a minimum set of procedural rights in criminal proceedings in the European Union. Rights covered in the 2004 proposal were, besides the right to free interpretation and translation, the right to legal advice, the right to information about rights (Letter of Rights), the right to specific attention for vulnerable defendants, the right to communicate with consular authorities and the right to communicate with the family. For the first proposal, the Commission has decided to concentrate on the right to interpretation and translation as it was the least controversial right in the discussions of the 2004 proposal. The proposal is accompanied by a non-legislative measure in the form of a draft Council Resolution of the Presidency. This aims to improve standards in EU Member States of interpretation and translation in the course of criminal proceedings. This proposal should also be considered together with a Presidency proposal for a "Roadmap on procedural rights", which is reported in a further Chapter in this week's Report.

11.3 The proposal is also subject to a COSAC (Conference of Community and European Affairs Committees of Parliaments of the European Union) subsidiarity check under the provisions of Protocol 2 on the Application of the Principles of Subsidiarity and Proportionality as attached to the Treaty of Lisbon (see Conclusions adopted by the XLI COSAC on 12 May 2009 in Prague) .[33]

Previous scrutiny

11.4 We reported on the Commission's previous proposal for a Framework Decision on procedural rights throughout the negotiations.[34] In our final Report[35] before the proposal was abandoned, we reported that the Council of Europe, which is responsible for ensuring the application of the European Convention of Human Rights (ECHR) in its signatory states, had concluded that the draft proposal did not contain "sufficient safeguards to ensure coherence and consistency with the ECHR". We also reported the views of the Government in the form of an Explanatory Memorandum from the then Attorney General (Lord Goldsmith). Among other concerns the Attorney General had concluded that the legal base of Article 31(1)(c) EU was only appropriate for cross-border, as opposed to domestic, criminal cases and therefore could not be used for this proposal which covered both; and that certain provisions of the proposal were likely to create inconsistencies with the ECHR as interpreted by the European Court of Human Rights (ECtHR) and therefore legal uncertainty. We drew a similar conclusion, commenting that "[g]iven the pre-existing duty of Member States to comply with the ECHR, adoption of a conflicting Framework Decision will serve no purpose other than to create confusion". Instead of a Framework Decision we recommended the Council adopt a non-binding Resolution on procedural safeguards.

Current proposal


11.5 The first two recitals of this Framework Decision recall the establishment (following the Tampere Conclusions) of mutual recognition as the cornerstone for judicial cooperation in the EU and the adoption of that principle in the Hague Programme. The third and fourth recitals make the link between implementation of the principle of mutual recognition and the need for mutual trust of each other's criminal justice systems. The fifth recital states that accession to the ECHR has not always provided a sufficient degree of trust in the criminal justice systems of EU Member States. Recitals 6 and 7 state that the application of common standards within the EU "should lead to increased confidence in the criminal justice systems of all Member States which in turn should lead to more efficient judicial cooperation in a climate of mutual trust". Subsequent recitals set out the importance of interpretation and translation rights "as enshrined in Articles 5 and 6 of the ECHR" and the Framework Decision's intention to facilitate the application of those rights in practice. Addressing the subsidiarity threshold, recital 14 states "[s]ince the aim of achieving common minimum standards cannot be achieved by Member States acting unilaterally and can only be achieved at Union level, the Council may adopt measures in accordance with the principle of subsidiarity".


11.6 Article 1 sets out the scope of the Framework Decision: to lay down rules concerning the rights to interpretation and translation in criminal proceedings and in proceedings for the execution of a European Arrest Warrant (EAW). The rights apply from the time that a person is informed by the Member State's competent authorities that he is suspected of having committed a criminal offence until the conclusion of the proceedings.

11.7 Article 2 sets out the ambit of the right to interpretation. Article 2(1) sets out when in criminal proceedings interpretation must be provided. Article 2(2) makes clear that legal advice must be interpreted for a suspect and Article 2(3) requires a procedure to be put in place to ascertain whether the suspect understands and speaks the language of the criminal proceedings. Article 2(4) states that there must be a right of appeal against a decision that there is no need for interpretation. Article 2(5) provides that the right to interpretation includes assistance to persons with hearing and speech impediments. Article 2(6) provides that subjects of EAW proceedings who do not understand and speak the language of the proceedings shall be provided with interpretation during those proceedings.

11.8 Article 3 sets out the right to translation of essential documents. Article 3(1) provides that Member States shall ensure that a suspect who does not understand the language of the criminal proceedings is provided with translations "of all essential documents in order to safeguard the fairness of the criminal proceedings", and that these shall include (Art 3(2)) "the detention order depriving the person of his liberty, the charge / indictment, essential documentary evidence and the judgment". It also provides that a "reasoned request" may be submitted for further documents (Art 3(3)), and that there is a right of appeal against a decision to refuse translation of any of the documents referred to in Article 3(2). Finally Article 3(5) states that those who are the subject of proceedings for the execution of an EAW shall be provided with a translation of it.

11.9 Article 4 provides that Member States shall cover the costs of interpretation and translation.

11.10 Article 5 provides that interpretation and translation shall be provided in a way that "ensures that the suspect is fully able to exercise his rights" (Article 5(1)). It also states that Member States shall offer training to judges, lawyers and other relevant court personnel to ensure the suspect's ability to understanding the proceedings (Article 5(2)).

11.11 Article 6 is a non-regression clause, which makes clear that nothing in the Framework Decision is to be construed as limiting or derogating from the rights and procedural safeguards that are ensured under the ECHR.

11.12 Articles 7, 8, and 9 are standard and concern implementation, reporting on compliance and entry into force.

The Government's view

11.13 In his Explanatory Memorandum of 22 July, the Parliamentary Under-Secretary of State at the Ministry of Justice (Lord Bach) informs us of the Government's initial views of this proposal (at the time of writing the Government was still assessing whether the proposal would have an impact on national legislation).

11.14 In relation to subsidiarity, the Minister agrees with the Commission's analysis that the objectives of the proposal are best achieved at EU level.

"Whilst acknowledging, of course, the impact of the ECHR, the Government understands there are differences of application and approach across Member States in respect of interpretation and translation. Mutual recognition is a cornerstone of judicial cooperation and depends on trust and confidence as between the Member States. Nationals of one Member State may routinely find themselves subject to the criminal proceedings of another and invariably will require interpretation for proper understanding of the proceedings. The Government considers it important to ensure there are accepted common minimum standards across the states of the EU in this field for the protection of those suspected of committing criminal acts and believes that this proposal will indeed further that objective. Common action by Member States under the auspices of Title VI is the best way in the Government's view to promote these standards across the whole of the Union and is not something that can be expected simply to be left to Member States acting alone, particularly given the wide use of free movement rights by nationals of EU Member States."

11.15 The Minister then reviews each Article in turn. The Government is content with Article 1. The Government welcomes the clarity that Article 2(1) brings to the right set out in the ECHR; it also supports the thrust of Articles 2(2) and 2(3). It has concern over the term "right of appeal" in Article 2(4) since this carries connotations of judicial oversight, which is not always appropriate (for example for questioning in a police station); it is also reflecting on the extension of the right to interpretation to persons with hearing or speech impediments. In Article 2(5) it welcomes the extension of these rights to EAW hearings.

11.16 In relation to Article 3, which concerns the translation of documents, the Government is not convinced that the current text fits well with the common law system. For example, there is usually no "judgment" to be translated. Also, the oral tradition of domestic criminal proceedings means that there is less emphasis on written documents. The Government is also concerned that the term "essential documents" is too broad, and the Minister comments further that "[a]lthough not expressly specified in the ECHR, the right to translation has been touched upon in ECHR case-law. We will want to make sure that there is consistency between that jurisprudence and the wording of the provision".

11.17 Article 4 provides that Member States will cover the costs of interpretation and translation. The Government is concerned that the obligation to pay for the costs of translation in the way proposed "goes considerably further than necessary". The Government is "broadly content" with Article 5, which concerns the quality of interpretation and translation, although it thinks it should be for Member States to decide how best to ensure that there is a proper understanding of the role of interpreters and it will reflect on how this provision could be refined. Finally, the Minister informs us that the Government welcomes the non-regression clause in Article 6, which ensures that the rights protected under the ECHR are not diluted by this framework Decision.


11.18 There is, in our view, a need to strengthen the right of suspects to have documents translated and proceedings interpreted in criminal cases throughout the EU. The preliminary results of the Study on Procedural Rights: Existing Level of Safeguards in Member States in Member States 2008 — Update, which is currently being carried out by Maastricht University after being commissioned by the Commission, show that the provisions for translation and interpretation vary greatly across the Member States of the EU. Only eight Member States have an established procedure for ascertaining whether there is a need for interpretation in criminal proceedings. In the majority of the Member States there is no scheme for emergency linguistic assistance when suspects are held for questioning at the police station. In five Member States there is no provision to have an interpreter present during consultations with counsel. In five Member States the right to translation of documents is not provided for. In six of the nineteen Member States where such a right does exist there is no legal obligation to inform the suspect of this right, and in fourteen of the nineteen Member States there is no established procedure to ascertain whether there is a need for translation of documents. In the nineteen Member States where there is a right to translation of documents, there is considerable variation as to the documents to which this applies.[36]

11.19 The Commission's Impact Assessment further highlights the wide discrepancy in compliance with the right to translation and interpretation in the EU. Its analysis is thorough. From a review of the case law of the ECtHR it reports that violations of Articles 5 and 6 of the ECHR tend to occur because States either do not have sufficient mechanisms in place to ensure that these rights are observed in practice, or because States do not always comply with ECtHR judgments by adjusting their legal systems. In addition, the ECtHR is burdened with a backlog of cases meaning that a judgment can take six years to be delivered, and many applications based on grounds of insufficient translation or interpretation are declared inadmissible by the ECtHR if on balance the overall proceedings were not unfair. The Commission's Impact Assessment also gives illuminating examples of miscarriages of justice caused by a suspect's inability to understand the proceedings against him, as reported by the Council of Europe's Committee for the Prevention of Torture and Fair Trials International.

11.20 From the above analyses, it is in our view appropriate to conclude that adhesion by EU Member States to the ECHR has not always resulted in a suspect's right to interpretation and translation being uniformly respected. There is therefore a need for these rights to be reinforced in order to avoid miscarriages of justice, particularly in the EU, characterised as it is by the free movement of persons.

11.21 It is also our view that this need is better met at EU than Member State level — for the following two reasons. The discrepancies in the current assurance of these rights within the EU are more effectively overcome by common standards being applied and overseen centrally than through unilateral reviews of legislation or procedure in individual Member States, which is less likely to lead to a common standard across the EU. And there is force in the argument that mutual trust, which is undoubtedly a pre-requisite to mutual recognition, will be enhanced by adopting common standards which are known to be respected in each Member State and which thereby build confidence among Member States in each other's legal systems.

11.22 We conclude therefore that the proposal complies with the principle of subsidiarity.


11.23 For the reasons above, we consider that there are good arguments for EU action to reinforce the right of criminal suspects to be able to understand the nature of the case against them so as to be able to defend themselves. To do as much is a fundamental component of a fair trial. However, the proposal is not without some of the difficulties which were raised by Member States and us during negotiations on the Commission's 2004 proposal on procedural rights. These are set out below.

11.24 The view of the Council of Europe on this proposal is important. The EU should be vigilant not to create an alternative hierarchy of human rights standards which are lower than, or conflict in other ways with, those developed under the ECHR as interpreted by the ECtHR. This would negate the good intentions of this Framework Decision and lead to considerable legal uncertainty. The rights established under this proposal must, therefore, be consistent with the ECHR. Consequently we would be grateful for information on both the consultation procedure that has been put in place with the Council of Europe on this draft proposal and the views expressed so far by the Council of Europe.

11.25 In order to ensure consistency with ECHR rights we make the following recommendations, upon which we would be grateful for the Government's response:

  • Article 2(1): Article 6(3)(e) ECHR states that everyone charged with a criminal offence has the right to "have the free assistance of an interpreter if he cannot understand or speak the language used in court". Article 2(1) talks of a "suspect who does not understand and speak the language of the court". We recommend it be amended to reflect the wording in the ECHR.
  • Article 2(1) and 3(1): There is a requirement in Articles 5(2) and 6(3)(a) of the ECHR that anyone arrested shall be informed "promptly, in a language which he understands/ and in detail…" "…of the reasons for his arrest and any charges against him/nature and cause of the accusation against him". We strongly recommend that a similarly worded obligation to inform a suspect promptly of the nature and cause of the accusation in an understandable language be inserted into Article 2(1) and 3(1).
  • Article 2(1) and 2(2): The requirement for legal advice to be interpreted is duplicated in paragraphs (1) and (2) of Article 2. Paragraph (1) talks of "all necessary meetings" whereas (2) talks of "where necessary". This could lead to uncertainty if left unchanged.
  • Article 2(1) and 3(1): The expression "in order to safeguard the fairness of the proceedings" seems to us to be too unspecific, removing the emphasis from the perspective of the suspect. A clearer formulation in Article 3(1), for example, along the lines of ECHR case law, would be "which it is necessary for him to understand in order to have the benefit of a fair trial".
  • Article 3(2): We note that the Government is considering a revision of this paragraph. The ECtHR has stated that not all documents have to be translated: the test applied is whether the accused is able to follow and form an opinion on the evidence. But if this paragraph is to retain a non-exhaustive list of essential documents, we recommend that "witness statements" be mentioned, as they are not necessarily covered by "essential documentary evidence", which in a common law setting would imply exhibits.

11.26 Article 4: The Government states that the obligation to pay for the costs of interpretation and translation goes "considerably further than necessary". However, we note that Article 6(3)(e) of the ECHR talks of a suspect's right "to have the free assistance of an interpreter" and that, under the relevant case law, this right to free assistance has been confirmed by the ECtHR. We would be grateful to the Government for an explanation of when it will be appropriate for the State to pay for these costs.

11.27 The Government objected to the legal base of the previous proposal on the grounds that Article 31(1)(c) could not be used for purely domestic criminal cases because no "common action on judicial cooperation" was required. We would be grateful for clarification of whether the Government still contends that Article 31(1)(c) limits the EU to legislating on cross-border crime only and note that this proposal does not distinguish between domestic and cross-border cases.

11.28 We would be grateful to be informed of the Government's assessment of the legislative impact of this proposal.

11.29 In terms of non-legislative measures, we would be grateful for an Explanatory Memorandum from the Government on the draft Council Resolution accompanying this proposal. This aims to improve standards in EU Member States of interpretation and translation in the course of criminal proceedings.

11.30 We would also be grateful for updates on the progress of negotiations.

11.31 Pending responses to the above we keep the proposal under scrutiny.

32   COM(2004) 328, 28 April 2004 Back

33   See Conclusions adopted by the XLI COSAC on 12 May 2009 in Prague ( Back

34   See headnote. Back

35   HC 41-xxii (2006-07), chapter 6 (16 May 2007). Back

36   The analysis of these findings is provided in a Briefing on this proposal by Justice, dated July 2009.  Back

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