Documents considered by the Committee on 30 March 2010 - European Scrutiny Committee Contents

3   Interpretation and translation rights


COM(10) 82

Draft Directive on the right to interpretation and translation in criminal proceedings

Legal baseArticle 82(2)(b) TFEU; co-decision; QMV
Document originated9 March 2010
Deposited in Parliament17 March 2010
Basis of considerationEM of 25 March 2010; Minister's letter of 25 March 2010
Previous Committee ReportNone; but see (31224)16801/09: HC 5-vii (2009-10), chapter 7 (20 January 2010)
To be discussed in CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; further information requested


3.1  The Commission's proposal comes as a surprise. This is because we have already reported on a Member State proposal for a Directive on interpretation and translation rights,[5] which is at the first-reading stage of the ordinary legislative procedure (and is reported in the previous chapter of this week's Report). The Member State proposal is substantially the same as the text of the Framework Decision on interpretation and translation right, which lapsed with the entry into force of the Lisbon Treaty.

The Commission's Proposal


3.2  The first recital refers to Article 47 (right to a fair trial, including to legal advice and representation) and Article 48 (respect for the presumption of innocence and the rights of the defence) of the Charter of Fundamental Rights.

3.3  Recitals two and three recall the establishment (following the Tampere Conclusions) of mutual recognition as the cornerstone of judicial cooperation in the EU and the adoption of that principle in the Hague Programme. The fourth and fifth 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, while the sixth notes that being party to the ECHR does not in itself guarantee that trust. The seventh recital refers to Article 82(2) TFEU as a basis for establishing minimum rules in order to facilitate mutual recognition and judicial cooperation through improving mutual trust.

3.4  The eighth and ninth recitals refer to the Roadmap on procedural rights. Recital eight refers to the "step by step" approach of the Roadmap and its adoption in November 2009, and lists the proposals it contains. The ninth recital states that this Directive is the first measure on the Roadmap, and that it lays down common standards for interpretation and translation in order to enhance confidence between Member States. The tenth recital explains that this Directive aims to facilitate the application of rights to interpretation and translation under Article 6 of the European Convention on Human Rights (ECHR) in practice with a view to safeguarding the right to fair proceedings. The eleventh recital notes that the Directive extends to European Arrest Warrant (EAW) proceedings, and costs will be borne by the executing Member State.

3.5  Recital 12 refers to communication between suspect and counsel, and explains that the suspect should be able to explain his version of events, point out any statements with which he disagrees and make his counsel aware of any facts that should be put forward in his defence. Recital 13 deals with review of a decision that there is no need for interpretation or translation, and states that there should be a right to "challenge" such decisions, including where the interpretation or translation provided is so deficient that it amounts to an absence of interpretation. The fourteenth recital deals with the provision of appropriate assistance and attention to those with physical impairments.

3.6  Recital 15 refers to the need to translate certain essential documents as a minimum, including "key documentary evidence" as well as any decision depriving the person of liberty, the charge or indictment and any judgement. Recital 16 states that a waiver of this right should be unequivocal and only valid after legal advice has been received. Recital 17 introduces the subject of training, and states that this should be offered to judges, lawyers, prosecutors, police and other relevant court staff to "raise awareness of the situation of those needing and those providing interpretation".

3.7  Recital 18 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. Recital 19 states that this Directive respects fundamental rights and observes the principles recognised by the Charter of Fundamental Rights, particularly rights to liberty, a fair trial, and of the defence, and adds that it has to be implemented accordingly. Recital 20 provides that 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. Recital 21 explains that this Directive is consistent with the principles of subsidiarity and proportionality. Recital 22 deals with the possibility of opt in for the UK and Ireland, and Denmark's opt out of EU criminal justice legislation.


3.8  Article 1 sets out the subject matter and 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 of having committed a criminal offence until the conclusion of the proceedings.

3.9  Article 2 describes the ambit of the right to interpretation. Article 2(1) states that Member States must ensure that a suspect or accused person is provided "without delay" with interpretation of a quality sufficient to safeguard the "fairness of the criminal proceedings". Interpretation must be provided during the proceedings before investigative and judicial authorities including during police questioning, during all necessary meetings between the suspect and his lawyer and during court and interim hearings. Article 2(2) states that, where necessary, legal advice received throughout the proceedings must be interpreted for the suspect. Article 2(3) states that there must be a "procedure" to ascertain whether the suspect understands and speaks the language of the proceedings. Article 2(4) provides that the suspect must have the right to "challenge" a decision that there is no need for interpretation. Article 2(5) notes that the right to interpretation includes assistance to persons with hearing or 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.

3.10  Article 3 sets out the right to written translation of essential documents. Article 3(1) provides that Member States shall ensure that a suspect or accused person who does not understand the language of the criminal proceedings is provided with written translations of all essential documents. The translations must be of sufficient quality to safeguard the fairness of the criminal proceedings. Article 3(2) states that the essential documents must include the detention order depriving the person of liberty, the charge/indictment, essential documentary evidence and the judgement. Article 3(3) allows for the suspect or his lawyer to submit a reasoned request for the translation of further documents, including written legal advice from the lawyer. Article 3(4) states that Member States shall ensure that the suspect has the right to "challenge" a decision that there is no need for translation. 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. Finally, Article 3(6) states that the suspected or accused person may waive his rights under this Article after receiving legal advice on the point.

3.11  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.

3.12  Article 5 deals with effectiveness of interpretation and translation. Article 5(1) states that interpretation and translation must be provided in such a way as to ensure that the suspect is fully able to exercise his rights. Article 5(2) introduces training, and provides that Member States shall offer training to judges, lawyers, prosecutors, police officers and other court personnel. This is to ensure the suspect is able to understand proceedings and that those involved in criminal justice can better comprehend the role of interpreters and translators.

3.13  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, the Charter of Fundamental Rights, other relevant international law or national laws which provide a higher level of protection.

3.14  Articles 7, 8, and 9 deal with implementation, reporting on compliance and entry into force. Article 7(2) states that, when Member States adopt the measures necessary to comply with this Directive, those measures will contain a reference to this Directive or be accompanied by such a reference when they are published. The Government will consider this obligation, and the implementation timetable.

The Government's view

3.15  The Parliamentary Under-Secretary at the Ministry of Justice (Lord Bach) submitted an Explanatory Memorandum on the Commission's proposal on 25 March, together with a covering letter of the same date.

3.16  Under "Policy Implications" the Minister rehearses the reasons for which the Government supports legislation in this area, leading to its decision to opt into the Member State proposal. We have reported on these extensively. He does not, however, explain why the Commission has made a rival proposal, simply saying that "a situation in which there are two simultaneous proposals on the same subject matter has not arisen before". In addition, he is concerned that consideration of the Commission's proposal in Council will slow down on the adoption of a Directive in this field. He is not convinced that the Commission's proposal is needed in order to "address the points the Commission has identified as requiring further attention", but unfortunately he does not go on to enumerate what those points are. He anticipates that all of the Commission's concerns will be addressed on the basis of amendments to the Member State initiative proposed by the European Parliament. The Government will therefore monitor the progress of the Commission's proposal before deciding whether to opt into it as well as the Member State proposal.

3.17  On the substance of the proposal the Government will need to give further consideration to the references to the Charter in the recitals. On Article 2, the Government explained in its Explanatory Memorandum of 30 December on the Member State initiative that it would support even clearer wording regarding a suspect's right to interpretation of communications with legal counsel, and the Government is therefore reflecting on the Commission's drafting. The Government supports the possibility of some form of challenge or review, and is considering the wording of Article 2(4). In Article 2(5) the Government is currently of the view that this might not be the most appropriate measure in which to consider the needs of those with speech impediments. The Government is considering whether the requirements in Article 3 are consistent with the common law and also considers that some of the terms seem open-ended. The Government's position on Article 4 will depend on its assessment of Articles 2 and 3. The Government is content with the principle underlying Article 5 but is reflecting on how it might be implemented in practice. The Government is broadly content with Article 6, and will consider the reference to the Charter. The Government will consider the obligation in Article 7(2), and the implementation timetable.


3.18  We thank the Minister for his Explanatory Memorandum, but it fails to address the all-important question of why the Commission has tabled a competing proposal. The Minister says that he is not convinced that the Commission's proposal is needed in order to "address the points the Commission has identified as requiring further attention", but he does not enumerate what those points are. Without these, we are none the wiser as to why the Commission is apparently seeking to displace a Member State proposal. We would like to hear from the Minister on this in time for our meeting on 7 April.

3.19  The Commission's action also raises an important question of policy on which the Minister's Explanatory Memorandum is silent. Article 76 TFEU gives the Member States and the Commission a shared right of initiative in the field of judicial cooperation in criminal matters and police cooperation. If Member States propose legislation in this field, does the Minister think that it is acceptable for the Commission to propose competing legislation, as in this case? And does it have the power to do so under Article 76? Or can Article 76 be interpreted to mean that once a proposal has been made by either a group of Member States or the Commission, a further proposal on the same subject matter is pre-empted? Alternatively, it may be the case that the Commission has made its proposal knowing that it will never reach the statute books, but with the intention of providing the European Parliament with good source of amendments to the Member State proposal. If this is so, does the Minister think the Commission's approach abuses the principle of a shared right of initiative? We ask these questions because of the likely level of legislative activity in this field in the future. Again, we would be grateful to hear from the Minister for our meeting on 7 April.

3.20  In the meantime, the Commission's proposal is kept under scrutiny.

5   See headnote. Back

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