Documents considered by the Committee on 20 January 2010, including the following recommendations for debate: Enlargement Strategy and Main Challenges 2009-2010, etc - European Scrutiny Committee Contents


7   Interpretation and translation rights in criminal proceedings

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16801/09


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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 baseArticle 82(2)(b) TFEU; QMV; co-decision
Deposited in Parliament17 December 2009
DepartmentJustice
Basis of considerationEM of 30 December 2009
Previous Committee ReportNone; 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 CouncilNo date set
Committee's assessmentLegally important
Committee's decisionNot 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


 
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