7 Interpretation and translation
rights in criminal proceedings
(31224)
16801/09
+ ADD 1
+ ADD 2
+ ADD 3
| Draft Directive on the rights to interpretation and translation in criminal proceedings
Explanatory memorandum
Detailed statement in accordance with Article 5 to Protocol No 2 to the Lisbon Treaty
Summary of the detailed statement in accordance with Article 5 to Protocol No 2 to the Lisbon Treaty
|
Legal base | Article 82(2)(b) TFEU; QMV; co-decision
|
Deposited in Parliament | 17 December 2009
|
Department | Justice
|
Basis of consideration | EM of 30 December 2009
|
Previous Committee Report | None; but see (31010) HC 19-xxviii 2008-09, chapter 16 (21 October 2009); (30984) HC 19-xxvii 2008-09, chapter 13 (14 October 2009); (30783) 11917/09 HC 19-xxvi 2008-09, chapter 11(10 September 2009)
|
To be discussed in Council | No date set
|
Committee's assessment | Legally important
|
Committee's decision | Not cleared, further information requested
|
Background
7.1 The (JHA) Council adopted a roadmap for strengthening
procedural rights of suspected and accused persons in criminal
proceedings on 30 November 2009.[17]
The roadmap enumerated six measures as the basis for future action,
one of which was legislation on the right to translation and interpretation
in criminal proceedings. This took the form of a draft Framework
Decision under Title VI (the third pillar) of the former Treaty
on European Union.
7.2 We reviewed the draft Framework Decision
on translation and interpretation on three occasions, clearing
it from scrutiny in time for its expected adoption at the JHA
Council on 30 November 2009. For reasons which are not clear,
the proposal was not adopted at the JHA Council, although a General
Approach had been agreed the week before. And so, with the coming
into force of the Lisbon Treaty, it has had to be re-presented
as a Directive under Title V of the Treaty on the Functioning
of the EU (TFEU). Because the caretaker Commission, which is in
place pending formal approval of a new Commission by the European
Parliament, cannot propose legislation, the draft Directive is
an initiative of a group of Member States,[18]
in permitted by Article 76(b) TFEU.
New legal base
7.3 The initiative for a Directive on the right
to interpretation and to translation in criminal proceedings is
based on Article 82(2)(b) TFEU, according to which "To
the extent necessary to facilitate mutual recognition of judgments
and judicial decisions and police and judicial cooperation in
criminal matters having a cross-border dimension, the European
Parliament and the Council may, by means of directives adopted
in accordance with the ordinary legislative procedure, establish
minimum rules. Such rules shall take into account the differences
between the legal traditions and systems of the Member States.
They shall concern: (
) (b) the rights of individuals in
criminal procedure."
7.4 In accordance with Article 82(2) TFEU, the
provisions of this Directive set minimum rules. Member States
may extend the rights set out in this Directive in order to provide
a higher level of protection. However, the level of protection
should never fall below the standards provided by the European
Convention on Human Rights, as interpreted in the case-law of
the European Court of Human Rights.
7.5 The legislative procedure for the Directive
is the "ordinary legislative procedure",[19]
formerly known as co-decision, in which the Council and the European
Parliament have equal legislative powers. The procedures, which
provide for three readings and establish a Conciliation Committee
in case of disagreement, are the same as those for co-decision
under the former EC Treaty.[20]
7.6 The incorporation of the former third pillar
of the EU into Title V TFEU not only gives a role to the European
Parliament in the formulation of legislation on police and judicial
cooperation in criminal matters; it also brings this area of legislation
fully into the framework of EU law. This means that legislation
adopted under this Title can be directly effective, and falls
under the jurisdiction of the Court of Justice, to which national
courts can refer questions under Article 267 TFEU. The Commission
also has the power to take infringement proceedings against Member
States who fail to implement legislation properly.
Explanatory Memorandum of 30 December 2009
7.7 In his Explanatory Memorandum the Parliamentary
Under-Secretary at the Ministry of Justice (Lord Bach) describes
the Government's reasons for supporting this initiative in terms
similar to before. He says there is evidence of discrepancies
between how Member States have implemented the requirement to
provide translation and interpretation services for suspects under
Article 6 of the ECHR; this has led to widely varying interpretation
and translation standards in Member States; common minimum standards
for interpretation and translation at EU level would therefore
help to protect the rights of criminal suspects, particularly
given the wide use of the right to free movement in the EU, and
would facilitate judicial co-operation and mutual recognition
by building trust and confidence between Member States. In terms
of subsidiarity, the Government is of the view this initiative
will be achieved most effectively through common action at EU
level, rather than by Member States acting independently. The
Government is therefore likely to opt into the draft Directive.
7.8 The Minister does not anticipate that the
Directive would have a significant legislative or financial impact
on the UK because regional legal systems already afford free access
to interpretation during the investigative and trial stage. So
far as translation is concerned in England and Wales there may
however be a need to set out clearly which essential documents
are to be translated. The Government would expect this may be
done in part through amendment to the PACE Code C, which could
also make provision for review of police decisions. The Government
will also consider looking at the existing guidance in the National
Agreement on arrangements for the use of interpreters and translators.
It does not rule out the possibility "to embed more firmly"
the above best practices, as applied through the common law, into
some future legislation although this would be considered
regardless of the existence of EU law on the subject. The Minister
reports that officials in devolved administrations are still considering
implementation.
7.9 Given that the UK participated in the
negotiations of a text that was politically agreed as a Framework
Decision, the Government is confident that it will be able to reach
a final text it can accept, although it recognises that this measure
will now be subject to the agreement of the European Parliament
through the ordinary legislative procedure.
The main provisions of the Directive are as follows:
RECITALS
7.10 The first two recitals of this Directive
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 the criminal justice systems of the member
States, while the fifth notes that being party to the ECHR does
not in itself guarantee that trust.
7.11 The sixth and seventh recitals refer to
Article 82(2)(b) of the TFEU as a basis for establishing minimum
rules in order to improve judicial cooperation through mutual
trust. The eighth explains that this Directive aims to facilitate
the application of Article 6 ECHR in practice by guaranteeing
suspects' rights to interpretation and translation to safeguard
their right to fair proceedings. The ninth notes that the Directive
extends to European Arrest Warrant (EAW) proceedings and costs
will be borne by the executing Member State. The tenth acknowledges
that the Directive sets minimum rules, so Member States may extend
rights further, and notes that the level of protection should
not fall below the ECHR. Ten and 11 note that the suspect should
be able to communicate with his counsel to exercise his defence,
but Member States need not provide interpretation where they can
communicate effectively in the same language or where interpretation
is clearly not for the purpose of exercising fair trial rights.
7.12 Recitals 13 and 14 deal with the provision
of appropriate assistance and attention to those with hearing
impediments and physical impairments. 15 and 16 refer to the need
to translate certain essential documents as a minimum, and state
that a waiver of this right should be unequivocal and not run
counter to any important public interest.
7.13 17 and 18 explain that the Directive respects
and promotes ECHR rights, and Member States should ensure that,
where provisions of the Directive correspond to ECHR rights, they
are implemented consistently with the ECHR and its case law. The
Minister states that the Government supports recital 18 in particular;
it believes that it is important that there is clarity about the
relationship between this Directive and the ECHR as they both
legislate in the same area. Recital 19 explains that this Directive
is consistent with the principles of subsidiarity and proportionality.
ARTICLES
Scope
7.14 Article 1 sets out the scope of the Directive:
to lay down rules concerning the rights to interpretation and
translation in criminal proceedings and proceedings for the execution
of an EAW. The rights apply from the time that a person is informed
by the Member State's competent authorities that he is suspected
or accused of having committed a criminal offence until the conclusion
of the proceedings. Conclusion of the proceedings is defined as
the final determination of whether the suspected or accused person
has committed the offence. The Directive does not apply to proceedings
leading to sanctions from an authority other than a criminal court,
unless the proceedings are pending before a court with criminal
jurisdiction. The Government is considering the scope in the light
of the new Treaty base.
Interpretation
7.15 Article 2 describes the ambit of the right
to interpretation. Article 2(1) states that interpretation must
be given to a suspected or accused person in order to safeguard
his right to fair proceedings. Interpretation, including communication
between the suspect and his legal counsel, shall be provided during
criminal proceedings before investigative and judicial authorities.
The Government welcomes this focus on the suspect's right to fair
proceedings, and the clarity that 2(1) brings to the right set
out in the ECHR. That said, it would have preferred the wording
to be even clearer regarding a suspect's right to interpretation
of communications with their legal counsel and, if the opportunity
arises, it would support an amendment to this effect. Article
2(2) notes that persons with a hearing impediment shall receive
interpretation, if appropriate for that person. The Government
thinks this is flexible enough to allow for the varying needs
of persons with hearing impediments, and is content. Article 2(3)
requires Member State competent authorities to verify whether
the person understands and speaks the language of the criminal
proceedings and needs an interpreter. The Government supports
this provision. Article 2(4) states that there must be the possibility
of a review of the decision finding that there is no need for
interpretation. The Government supports having an opportunity
for review, and believes that this wording is sufficiently flexible,
for example at the investigation stage to allow for a review by
the police, rather than as part of an appeal. Article 2(5) provides
that subjects of EAW proceedings who do not understand and speak
the language of the proceedings shall be provided with interpretation.
The Government believes that this is an important safeguard to
balance the powers contained in the EAW and supports this provision.
Translation
7.16 Article 3 sets out the right to translation
of essential documents. Article 3(1) provides that Member States
shall ensure that a suspected or accused person who does not understand
the language of the criminal proceedings is provided with translations
of all documents, or at least the important passages of such documents,
which are essential to safeguard his right to fair proceedings,
providing he already has access to such documents under national
law. The Government is content. Article 3(2) states that the competent
authorities of the Member States shall decide which are the essential
documents. However, these must include at least detention orders
or equivalent decisions depriving the person of his liberty, the
charge or indictment, and any judgment, where such documents exist.
The Government supports this provision: it is sufficiently specific,
but allows for the common law system where, for example, there
may not be a "judgment" to be translated. The suspected
or accused person or his counsel may submit a reasoned request
for translation of further documents which are needed to exercise
the right of defence (3(3)). There must be the possibility of
a review at some stage in proceedings if documents are not provided
under 3(2) or 3(3), but this review does not necessitate a separate
mechanism in which the sole ground is that challenge. The Government
supports allowing for further requests and review, and is content
with the wording of these provisions. Article 3(5) states that
the executing Member State shall ensure that those who are the
subject of proceedings for the execution of an EAW shall be provided
with a translation of it. The Government supports this provision.
Article 3(6) states that an oral translation or summary of the
essential documents may, where appropriate, be provided instead
of a written translation, providing this does not affect the fairness
of the proceedings. The Government supports this provision. Finally,
Article 3(7) states that the suspected or accused person may waive
his rights under this Article. The Government is content.
Costs
7.17 Article 4 provides that Member States shall
cover the costs of interpretation and translation arising from
Articles 2 and 3, irrespective of the outcome of proceedings.
As the Government supports the obligations as defined in Articles
2 and 3, it is also content with this provision.
Quality
7.18 Article 5 provides that Member States shall
take concrete measures to ensure that interpretation and translation
is of adequate quality so that the suspected or accused person
(or person subject to an EAW) is fully able to exercise his rights.
The Government supports this provision.
Non-regression clause
7.19 Article 6 is a non-regression clause, which
makes clear that nothing in the Directive is to be construed as
limiting or derogating from the rights and procedural safeguards
that are ensured under the ECHR, other relevant international
law or national laws which provide a higher level of protection.
The Government supports this provision.
Miscellaneous
7.20 Articles 7, 8, and 9 deal with implementation,
reporting on compliance and entry into force. Consideration will
need to be given to the implementation timetable but otherwise
these are standard articles and the Government is content.
Conclusion
7.21 The recitals and Articles in the draft
Directive are with minor exception identical to those of the draft
Framework Decision, which this draft Directive replaces.
7.22 We reported on the draft Framework Decision
on three occasions before clearing it from scrutiny in October
last year. We concluded that there was a need to reinforce suspects'
rights to interpretation and translation in order to avoid miscarriages
of justice, and that this need was better met at EU than Member
State level. This was for two reasons. Firstly the discrepancies
in provision between Member States would be more effectively overcome
by common standards being applied and overseen centrally than
by Member States acting unilaterally. Secondly, such common standards
would enhance mutual trust between Member States.
7.23 Our view has not changed, but we would
be grateful for an update on negotiations in time for us to report
within the eight week period from publication, as agreed by Baroness
Ashton for parliamentary scrutiny of opt-in decisions. What is
important to us is that the standards achieved in the previous
negotiations are not watered down. We would also be grateful to
be informed of the response of the relevant devolved administrations
to these proposals within the same time period.
17 (30985) -; see HC 19-xxviii (2008-09), chapter 15
(21 October 2009), (30753) 11457/09, (30985) HC 19-xxvii (2008-09),
chapter 12 (14 October 2009), and HC 19-xxvi (2008-09), chapter
10 (10 September 2009). Back
18
Belgium, Germany, Estonia, Spain, France, Italy, Luxembourg, Hungary,
Austria, Portugal, Finland and Sweden. Back
19
Article 289(1) TFEU. Back
20
Article 294 TFEU. Back
|