13 INTERPRETATION AND TRANSLATION
RIGHTS IN CRIMINAL PROCEEDINGS
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11917/09
COM(09) 338
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(b)
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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
Draft Council Framework Decision on the right to interpretation and to translation in criminal proceedings
Draft Council Framework Decision on the right to interpretation and to translation in criminal proceedings
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| Legal base | (a)Article 31(1)(c) EU; (b) Article 31(1)(c) EU; 34(2)(b) EU
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| Deposited in Parliament |
(b) 7 October 2009 |
| Department | Justice
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| Basis of consideration |
Minister's letter of 8 October 2009; EM of 8 October 2009
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| Previous Committee Report |
(a) HC 19-xxvi (2008-09), chapter 11 (10 September 2009)
(b) None
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| To be discussed in Council
| 23 October 2009 |
| Committee's assessment | Politically and legally important
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| Committee's decision | (a) Cleared (b) Not cleared; further information requested
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Background
13.1 We considered the initial draft of the Framework Decision
on interpretation and translation rights, document (a), at our
meeting on 10 September.[47]
We found evidence that, despite all 27 Member States of the EU
having acceded to the European Convention on Human Rights (ECHR),
the availability of full interpretation and defence rights was
at best patchy. The consequence was that many suspects being tried
in foreign jurisdictions in the EU were not able to understand
the cases against them and therefore defend themselves properly.
We concluded that this was, therefore, an important proposal.
We also noted that it was the first in a series of EU proposals
in the field of procedural safeguards in criminal proceedings
since the Commission initiative of 2004.
13.2 In the conclusion to our Report, we asked the
Minister to confirm whether the Council of Europe had been consulted
on the proposal; we commented that the proposal should not create
an alternative hierarchy of human rights standards beyond those
of the ECHR — to do as much would undermine the ECHR and
cause legal uncertainty; we made a series of drafting suggestions
to ensure consistency with the relevant provisions of the ECHR;
we asked for an explanation of whether the legal base of Article
31(1)(c) could apply to purely domestic criminal cases as well
as those which had cross-border elements; and we wanted to know
the legislative impact of the proposal.
The Government's view
EXPLANATORY MEMORANDUM OF 8 OCTOBER 2009
13.3 The Parliamentary Under-Secretary of State at
the Ministry of Justice (Lord Bach) has deposited a second Explanatory
Memorandum, which answers some of the questions we posed. A letter
from the Minister of the same date as the Explanatory Memorandum
answers the others.
13.4 The Minister informs us that the proposal is
unlikely to have a significant legislative impact in England and
Wales. This is because free access to interpretation is well-established
in the common law and reflected in PACE Code C for those in custody.
The duty to translate documents is less clearly defined, being
dependent on the case law of the European Court of Human Rights.
The Minister says that there may in due course be a need to set
out in statute which documents arising from criminal proceedings
are to be translated. The Minister reports that officials in the
devolved administrations are still considering the legislative
impact of the proposal. (The Government is awaiting an indication
from the Government of Gibraltar on whether or not it wishes to
participate in this measure.)
13.5 The Minister makes the following assessment
of the negotiations.
- Preamble: recitals 8bis, ter
and quater clarify the scope of application of the proposal, respectively
to decisions made by criminal courts only, also in respect of
the European Arrest Warrant, and up to the conclusion of the proceedings
(which is understood to be conviction and sentence or, in the
event of an appeal, the final determination of whether the person
has committed or not an offence). The recital on training has
been deleted, as it is now covered by the Resolution on interpretation
and translation. The remaining recitals focus on the principle
of fair proceedings. The Government is now content with the overall
shape of the preamble, although the Minister understands that
the Presidency is planning further discussion of the recitals
following political agreement on the proposal.
- Article 2 (right to interpretation) has been
amended so that it now focuses on clarifying that interpretation
as such (e.g. British Sign Language/English) should be provided
to people with a hearing impairment, when this is the appropriate
means of assistance, which it is not in all circumstances. The
Government welcomes this clarification. The article also states
that there must be a right of review against a decision finding
that there is no need for interpretation. The Government also
welcomes the change from "appeal" to "review".
Similarly, the Government welcomes the move to a clearer and more
flexible approach to verifying whether interpretation is needed.
- Article 3 (right to translation) sets out the
right to translation of essential documents and provides a non-exhaustive
list of such documents, while making clear that "competent
authorities", as opposed to Member States, determine which
documents are essential. A "review", as opposed to an
"appeal" as in the previous text, against a decision
to refuse translation of any of these documents is possible but
does not need to entail a separate mechanism in which the sole
ground is that challenge. The Government welcomes this change.
The Government also welcomes the amendment to the effect that
an oral translation or summary may be given where a written translation
might not be the most appropriate way to proceed, provided this
does not affect the fairness of the proceedings. Finally the draft
makes clear that those rights can be waived by the person concerned.
The Government is satisfied with the amendments made to the whole
Article.
- Article 4 (cost of interpretation and translation)
now makes clear that the cost of interpretation and translation
shall be covered by Member States, regardless of the outcome of
the proceedings, which is a welcome clarification.
- Article 5 (quality of the interpretation and
translation) is now aligned with the title, and provides that
interpretation and translation shall be of adequate quality to
ensure that the suspect, including a person subject to an EAW,
is fully able to exercise his rights. The Government welcomes
this.
13.6 On timetable, the Minister says that the proposal
is a priority of the Presidency, which intends to seek a "general
approach" on the text at the 23 October JHA Council.
THE MINISTER'S LETTER OF 8 OCTOBER 2009
13.7 The Minister's letter is a supplement to the
Explanatory Memorandum. He says that the new draft of the Framework
Decision is a significant improvement on the previous one, and
that he very much welcomes the input of the Committee, which helped
to shape the UK's position when discussing this proposed legislative
instrument with other Member States.
13.8 The Minister agrees with the Committee that
it is important to remain vigilant to avoid creating an alternative
hierarchy of human rights standards that are lower than, or are
otherwise inconsistent with, those developed under the ECHR. The
Government is urgently working with its EU partners to seek to
identify how best to clarify this relationship.
13.9 He points to where the text has been amended
or will be amended on the basis of the Committee's comments in
its first Report. These include ensuring in Article 1 that the
rights set out in the Framework Decision apply to those who do
not understand or speak the language of the court, rather
than "understand and speak" it as previously
drafted; clarifying the right to interpretation of legal advice
in paragraphs (1) and (2) of Article 2; finding more specific
wording as an alternative to the expression "in order to
safeguard the fairness of proceedings" in Article 2 and 3;
and clarifying that the Government will not seek to qualify in
Article 4 the obligation to pay for the costs of the interpretation
or translation.
13.10 The Minister states that he is content that
there is a legal basis for the proposal and sets out his reasoning.
- In relation to the previous
proposal, he states that Member States had concluded there was
no evidence that each of the elements of the 2004 Criminal Procedure
Framework Decision was in fact required to facilitate cross-border
cooperation. That had a fatal consequence for the legal base of
Article 31(1)(c).
- However, in the case of interpretation and translation
rights, "there are issues of criminal procedure that can
be properly legislated for on the basis of Article 31(1)(c) because
they are necessary for creating mutual trust". First, interpretation
and translation are essential aspects of fair proceedings and
are often appropriate in criminal proceedings where the defendant
comes from another Member State. Second, in taking this position
the Government has considered the implications of the various
mutual recognition instruments now adopted and the likely position
of the ECJ if asked to review them. In particular, the Government
is satisfied this particular proposal is necessary to improve
judicial cooperation and recognition of judicial decisions by
other Member States.
- Nor does the Government think as a matter of
principle Article 31(1)(c) prevents EU action which also affects
purely domestic cases. But that action must be necessary to improve
judicial cooperation to meet the objective of the EU:
"This measure aims to ensure the compatibility
of Member States' rules in relation to interpretation and translation.
There are now varying mutual recognition instruments. The Government
is fully behind this principle which is accepted as the cornerstone
of judicial cooperation and a key part of the cooperation foreseen
in Article 31. But trust as regards the minimum standards applied
in criminal proceedings is necessary to underpin that. Without
effective interpretation and translation, suspects and accused
persons will not be able to play a part in the proceedings at
all and we are satisfied that action is legitimate under Article
31(1)(c) for the EU to ensure compatibility of the rules in this
area. Moreover we consider it impracticable in this particular
area to identify in which cases the judicial cooperation of another
Member State could be requested and do not consider it possible
or realistic in drafting terms here to distinguish between domestic
and cross-border cases."
- The Minister also notes that
this is not the first instrument which may apply to purely internal
situations: the Framework Decision 2001/220/JHA on the standing
of victims in criminal proceedings does as well. The European
Court of Justice has decided one case on this instrument (Pupino
C-105/03) which concerned a purely internal case, and raised no
objection to the Framework Decision on this basis.
- He does, however, acknowledge that careful consideration
will always be needed to ensure that proposed action really is
necessary, proportionate and in accordance with the principle
of subsidiarity. In the case of the Data Protection Framework
Decision 2008/977/JHA, which was agreed last year, the Government
was not convinced that it was necessary or proportionate to apply
European-wide rules to all personal data, and that instrument
was limited to data that flows over borders. In the case of interpretation
and translation, however, it is satisfied it is necessary and
proportionate to legislate at EU level.
The Council of Europe's view
13.11 The Secretariat of the Council of Europe has
been fully consulted on this proposal. It states[48]
that its interest is to seek to ensure that new legal instruments
by the EU in the field of procedural guarantees in criminal proceedings
are "fully consistent with ECHR standards and provide real
added value in respect of the rights guaranteed under existing
Council of Europe instruments. Efforts aiming at improving standards
are to be warmly welcomed".
13.12 The Council of Europe Secretariat also "welcomes
the very constructive cooperation on this subject which has developed
over the last few years with successive Council Presidencies".
Many of the comments made by the Council of Europe have been incorporated
in the revised draft. Other relevant observations are set out
below.
13.13 In terms of the scope of the Framework Decision,
the Council of Europe states that:
"EU instruments on fundamental rights should
use the existing Convention standards and follow their wording
as closely as possible, including, wherever appropriate, principles
established in the Court's case-law. Following the example of
the EU Charter of Fundamental Rights, the framework decision should
enunciate the principle that, insofar as rights contained therein
correspond to rights guaranteed by the ECHR, the meaning and scope
of those rights are the same as those laid down by the ECHR. This
is even more important since the framework decision will not cover
procedural rights exhaustively.
"In previous Council of Europe comments
of 30 March 2007 on the proposal for a Framework Decision on certain
procedural rights in criminal proceedings throughout the European
Union, it was stated that 'where the Framework Decision departs
from the European Convention on Human Rights, it should be clearly
stated whether its provisions are intended to set a higher standard
than the European Convention on Human Rights, either in meaning
or scope of application, or to merely set out ways of complying
with existing ECHR standards'. While the last sentence of preambular
paragraph 8 suggests that the FD merely aims at facilitating the
application of the rights enshrined in Article 6 of the Convention,
a more in depth examination would be necessary to determine to
what extent the FD might go beyond the ECHR standards."
13.14 On Article 1 (scope), the Council of Europe
recommends that a clause be inserted on the consistency of the
rights in the proposal with the corresponding ECHR rights.
13.15 On Article 6 (non-regression clause) the Council
of Europe states:
"From a Convention point of view, the non-regression
clause laid down in Article 6 is to be welcomed. It is indeed
essential for ensuring that the day-to-day application of the
framework-decision and/or its 'translations' into domestic legislation
do not fall behind the standards of the Convention which, as illustrated
by many examples, are sometimes raised in the Strasbourg Court's
case-law as a consequence of the Convention being a 'living instrument
to be interpreted in the light of current conditions and of the
ideas prevailing in democratic States today' (Kress v. France
[GC], 7.6.2001, no. 39594/98, § 70)."
13.16 Lastly, the Council of Europe comments that
some provisions of the Framework Decision lay down standards surpassing
those of the ECHR. That, however, "does not raise a problem
in terms of their compatibility with the ECHR, since its Article
53 explicitly provides for such an eventuality. However…it
is important that such higher standards are clearly indicated."
Conclusion
13.17 We thank the Minister for his Explanatory
Memorandum, and particularly for his letter. We note the trouble
the Minister has taken to answer our questions and respond to
our observations, particularly on the issue of legal base.
13.18 We recognise that the draft has greatly
improved, and welcome the fact that the conclusions of our first
Report "helped to shape the UK's position when discussing
this proposal with other Member States", and that many of
our drafting recommendations have now been incorporated in the
text.
13.19 We welcome the fact that the Council of
Europe has been fully consulted on this proposal. In the words
of its Secretariat: "EU instruments on fundamental rights
should use the existing Convention standards and follow their
wording as closely as possible, including, wherever appropriate,
principles established in the Court's case-law". So its views
are both instructive and authoritative. We ask that this level
of consultation continue for all future EU proposals on procedural
rights.
13.20 We also note that the Council of Europe
says that the draft Framework proposal exceeds that relevant standards
in the ECHR. This does not render it incompatible with the ECHR,
but it says that is important that such higher standards are indicated.
There are no such indications in the current draft.
13.21 The conclusion of this Committee and its
predecessor has been twofold: that exceeding ECHR standards within
the EU's legal framework will both undermine the achievements
of the ECHR and lead to legal uncertainty. However, we take stock
of the opinion of the Council of Europe that it does not share
the first of our conclusions. It is the organisation with oversight
for the ECHR; as we state above, its views are authoritative.
13.22 But our second conclusion still seems to
be moot. We note that the Minister has stated in his letter that
it is very difficult, if not impossible, to draft a provision
which neatly distinguishes where EU law goes beyond the ECHR.
This, he says, is because the ECHR is constantly evolving and
Member States would be hard pushed to agree among themselves where
its safeguards begin and end. The difficulty described by the
Minister amply demonstrates why, in our view, going beyond the
scope of the ECHR will inevitably lead to legal confusion.
13.23 With this in mind, we ask the Minister to:
- state whether he will try
to insert the consistency of interpretation clause in Article
1, as recommended by the Council of Europe — we think he
should;
- state where the draft Framework Decision exceeds
the corresponding provisions of the ECHR;
- state how, if he does not follow the Council
of Europe recommendation for indicating where the draft Framework
Decision departs from the ECHR, he proposes to address the legal
uncertainty that would arise;
- consider whether the Framework Decision could
achieve its aim by using the same standards as those in the ECHR,
rather than exceeding them — we think he should.
13.24 The last question above reflects our view
that the most effective way of achieving the important goal of
assuring a higher standard of interpretation and translation rights
in criminal proceedings in the EU is to apply ECHR standards but
through the more enforceable mechanism of EU law.
13.25 In the meantime, we clear document (a),
the first draft Framework Decision, from scrutiny, but keep document
(b), the revised draft, under scrutiny pending the Minister's
replies to the above.
47 See headnote. Back
48
DROIPEN 72; COPEN 145. Back
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