3 Interpretation and translation
|Draft Directive on the right to interpretation and translation in criminal proceedings
|Legal base||Article 82(2)(b) TFEU; co-decision; QMV
|Document originated||9 March 2010
|Deposited in Parliament||17 March 2010
|Basis of consideration||EM of 25 March 2010; Minister's letter of 25 March 2010
|Previous Committee Report||None; but see (31224)16801/09: HC 5-vii (2009-10), chapter 7 (20 January 2010)
|To be discussed in Council||No date set
|Committee's assessment||Legally and politically important
|Committee's decision||Not 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,
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
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