11 Interpretation and translation rights
in criminal proceedings
| (30783) 11917/09 COM(09) 338
+ ADD 1
+ ADD 2
| 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 base | Article 31(1)(c) EU
|
| Document originated | 8 July 2009
|
| Deposited in Parliament | 16 July 2009
|
| Department | Justice
|
| Basis of consideration | EM of 22 July 2009
|
| Previous Committee Report | None; 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 Council | 23 October 2009
|
| Committee's assessment | Legally important
|
| Committee's decision | Not cleared; further information requested
|
Background
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was withdrawn in June 2007 after Member States failed to reach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
RECITALS
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".
ARTICLES
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.
Assessment
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.
Conclusion
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
(www.cosac.eu). 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
| 
