16 INTERPRETATION AND TRANSLATION
RIGHTS IN CRIMINAL PROCEEDINGS
(a)
(30984)
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(b)
(31010)
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Council Framework Decision on the right to interpretation and to
translation in criminal proceedings
Council Framework Decision on the right to interpretation and to
translation in criminal proceedings
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| Legal base | Article 31(1)(c) EU; 34(2)(b) EU
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| Deposited in Parliament | (b) 19 October 2009
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| Department | Justice |
| Basis of consideration | Minister's Letter of 16 October 2009
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| Previous Committee Report | (a) HC 19-xxvii (2008-09), chapter 13 (14 October 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 | (Both) Cleared; further information requested
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Background
16.1 We considered the draft Framework Decision for a second time
in last week's Report. We noted that several of our recommendations
had been incorporated in the revised draft, and that, overall,
the text was much improved. We also welcomed the fact that that
the Council of Europe had been fully consulted on the proposal.
We remained concerned, however, by how this draft legal instrument
would co-exist with the European Convention on Human Rights (ECHR),
noting that this was also a point raised by the Council of Europe.
The Minister's Letter of 16 October
16.2 The Parliamentary under-Secretary at the Ministry of Justice
(Lord Bach) has responded quickly to our Report, anxious that
we clear the Framework Decision from scrutiny before the JHA Council
meets on 23 October to agree a general approach.
16.3 The Minister welcomes the Committee's focus
on the relationship with the ECHR, agreeing with us that it is
"crucial that this relationship has been thought through".
He explains it as follows (we cite the relevant extracts in full,
given their importance):
"This issue of the relationship is complicated,
at least at a theoretical level, by the fact that the ECHR is
a living instrument to be interpreted in the light of current
conditions and of the ideas prevailing in democratic States. The
extent to which this has a substantial impact in practice is likely
to depend a bit on the ECHR rights (and qualifications) in question.
Because of the nature of the right, the area of interpretation
and translation may be one of those areas where we can expect
less change in light of current conditions and new ideas, rather
than more. But even so, it is a fact we have to consider that
the precise ambit of ECHR rights are capable of evolving in particular
cases through the development of the case law of the European
Court of Human Rights (ECtHR). As I mentioned before it is also
fair to say that Member States have different views on the precise
ambit of the ECHR. It is within this dual context that in my view
it is not helpful or feasible to insert a clause on the face of
the instrument indicating where the draft Framework Decision departs
from the ECHR. Given this, it is also problematic to insert a
consistency of interpretation clause. That said, I am keen to
ensure that the prism through which this Framework Decision is
viewed is that of the ECHR and the interpretation of the ECtHR.
The UK has therefore urged other Member States and the Presidency
to agree to the inclusion of a recital to help shape the interpretation
of the Framework Decision. You will therefore note that there
is a new recital 19 which reads:
"Member States should ensure that the
provisions of Articles 2 to 5 of this Framework Decision, where
they correspond to rights guaranteed by the ECHR, are implemented
consistently with those of the ECHR and as developed by the relevant
case-law of the ECHR.
"I believe this assists in relation to legal
certainty and to reinforce the relationship between this instrument
and the ECHR.
"The report cited the Council of Europe
view that the draft Framework proposal exceeds the relevant standards
and the Committee expressed its concern that exceeding ECHR standards
within the EU legal framework will undermine legal certainty.
The report also asked me to state where I believe the Framework
Decision exceeds the corresponding provisions of the ECHR (as
interpreted by the ECtHR). I am very happy to do so and this also
feeds into the concern about legal certainty. In summary, I would
say the current text of the Framework Decision very substantially
accords with the ECHR and does not go beyond it, with two exceptions.
The first exception relates to extradition [by means of a European
Arrest Warrant], and the second is the procedural provision about
requests and reviews.
"I understand that European Arrest Warrant
(EAW) proceedings do not themselves engage Article 6: see for
example Mamatkulov and Abdurasulovic v Turkey (2003). Therefore
Article 1 exceeds the ECHR, as do subsequent articles so far as
they relate to the EAW. […]
"Article 3.3 (requests) sets out an individual's
procedural right to request further documents which are necessary
for the effective right of defence. This accords with the logic
and good sense of the ECHR (see for example, para 80 of Kamasinski
v Austria). It adds to the ECHR only to the extent it reinforces
that procedurally a request for translation may be made. […]
"You will therefore appreciate that, in
my view, the draft Framework Decision does, as your report recommends,
substantially adopt the same standards as those in the ECHR (as
interpreted by the ECtHR). I am aware that other Member States
see the Framework Decision as exceeding those in the ECHR to a
greater extent. This, in my view, is an illustration of both the
value of the approach set out in the roadmap and of this Framework
Decision: by ensuring that there is precision in terms of what
the obligations are, the more enforceable mechanism of EU law
can ensure that there are high procedural standards throughout
the EU, and that our citizens can travel and work abroad with
greater confidence and trust in the judicial systems in other
Member States.
"I do hope that explanation of where in
our view the provisions of this Framework Decision correspond
to ECHR rights (and they do so substantially) lessens the concern
of the Committee regarding the issue of legal certainty. I do
not consider this Framework Decision will inevitably lead to legal
confusion
"Nor do I agree the point in the abstract.
Suppose a Member State chooses in a particular area covered by
an ECHR right to provide much greater protection to that laid
down by the ECHR. Individuals in that State would benefit from
such protection and would not be uncertain as to the rights they
had. The same point could be made at EU level, had this instrument
in isolation substantially exceeded the ECHR norms of interpretation.
Member States would implement the Framework Decision. Individuals
would be clear as to their rights.
16.4 The Minister then outlines further changes to
the draft Framework Decision since we reviewed it last week.
RECITALS:
- In recital 11 an additional
sentence has been added to clarify that Member States can provide
a higher level of protection than set out in the Framework Decision.
- Recital 12 is new and states
that Member States are not obliged to provide interpretation assistance
for communication between legal counsel and the suspect/accused
person where they can effectively communicate in the same language.
The Minister comments that this is a superfluous amendment. However,
he does not believe that it will water down the right of a suspect/
accused person, since it is clear in the recital that they must
be able to communicate "effectively".
- Recital 19 is new, and is set
out above.
ARTICLES:
- Recitals 8 bis (Framework Decision
does not apply to sanctions imposed by anything other than a criminal
court) and quarter (definition of when criminal proceedings begin
and end) have been deleted and incorporated in part into Articles
1 and 2.
- Articles 2(1) and 3(1) have been amended to reflect
the Committee's earlier comment that the right to interpretation
and translation is a right which attaches to the suspect/ accused
person, rather than the proceedings. So the expression "where
necessary for the purpose of ensuring the fairness of the proceedings"
has now been replaced with "in order to safeguard his/her
rights to a fair trial". The Minister says: "In my last
letter to you, I agreed with you and I am glad to tell you that
this phrase, and all subsequent uses of that phrase, have been
amended. It goes without saying that the Government welcomes this
clarity."
- Article 2(2) on the obligation
on Member States to provide interpretation assistance for communication
between legal counsel and the suspect/accused person has been
incorporated in part in Article 2(1).
Conclusion
16.5 We thank the Minister for his further letter.
16.6 His explanation on the relationship between
this Framework Decision and the ECHR is particularly helpful.
Given its importance to EU legislative activity in this field,
it is set out in full in the preceding paragraphs of this Report.
In concluding his argument, the Minister states that "he
does not consider this Framework Decision will inevitably lead
to legal confusion". There is nothing to be gained from rehearsing
again why we are more sceptical about this than he is; we simply
hope that he is right. In this regard, we welcome the addition
of recital 19 on the need for consistency with the ECHR, inserted
at the Minister's request.
16.7 We also note, and consider it worth highlighting
in the conclusion, his comment that some other Member States consider
that this Framework Decision greatly exceeds the ECHR. The implication
is that their standards fall below the UK's. So we agree with
him that one of the benefits in incorporating procedural safeguards
into the enforcement mechanisms of EU law means that UK citizens
can travel and work abroad with greater confidence in the judicial
systems of other EU Member States.
16.8 We do not welcome the latest revisions to
the text, but agree that they will not water down the rights contained
in Articles 2 to 5. We are, however, grateful that our drafting
recommendation to give greater emphasis to the rights attached
to the suspect/accused person in Articles 2(1) and (3) has been
incorporated.
16.9 In clearing documents (a) and (b) from scrutiny
we ask the Minister to report back to us once the final draft
of the text has been agreed after the next JHA Council.
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