79 Interpretation and translation rights
in criminal proceedings
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(31224)
16801/09
+ ADDs 1-3
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(b)
(31658)
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Draft Directive on the rights to interpretation and translation in criminal proceedings
Draft Directive on the rights to interpretation and translation in criminal proceedings
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| Legal base | Article 82(2)(b) TFEU; QMV; co-decision
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| Deposited in Parliament | (b) 4 June 2010
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| Department | Justice
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| Basis of consideration | EM of 9 June; Minister's letters of 19 April, 9 June and 30 June 2009
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| Previous Committee Report | (a) HC 5-vii (2009-10), chapter 7 (20 January 2010); HC 5-xvi (2009-10), chapter 2 (30 March 2010)
(b) None
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| To be discussed in Council | No date set
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| Committee's assessment | Legally important
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| Committee's decision | (a) Cleared (b) Cleared
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Previous scrutiny
79.1 This draft Directive is very closely based on a previous
Council Framework Decision on the right to interpretation and
translation in criminal proceedings. This formed the first step
of the procedural rights Roadmap, which was adopted on 30 November
2009. However, the proposal lapsed when the Lisbon Treaty came
into force on 1 December 2009. The substantive text of the Framework
Decision was reintroduced under Title V[343]
of the Treaty on the Functioning of the European Union (TFEU)
as a Member State initiative for a Directive. It was published
on 15 December 2009.
79.2 The previous Committee supported the adoption of the Framework
Decision and cleared it from scrutiny in October 2009.[344]
It reviewed the replacement Directive (document (a)) in January
and March of this year, and asked to be kept informed of significant
progress in the negotiations. The previous Government opted into
the proposed Directive on 8 March.
The Document
79.3 Document (b) is the final draft of the Directive as agreed
at first reading between the Council and the European Parliament.
It supersedes document (a).
RECITALS
79.4 The first two recitals 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 between respective criminal justice
systems. Recital 4a makes reference to articles of the European
Convention on Human Rights (ECHR) and Charter of Fundamental Rights
that are relevant to upholding a defendant's right to translation
and interpretation in criminal proceedings.
79.5 The fifth recital notes that being party to
the ECHR does not in itself guarantee that trust, whilst 5a states
that more consistent implementation of the rights and guarantees
helps strengthen mutual trust. The sixth recital refers to Article
82(2)(b) TFEU as a basis for establishing minimum rules in order
to improve judicial cooperation through mutual trust. The seventh
explains that this measure is the first of a series of procedural
rights measures, set out in the Roadmap, and builds upon the proposed
Framework Decision and the Commission proposal on the same matter.
79.6 The eighth recital explains that this draft
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.
79.7 The tenth recital deals with when a defendant
should be able to access free linguistic assistance. 10a to 10c
note that the suspect should be able to communicate with his counsel
to exercise his defence. Recital 10b provides for a mechanism
to ascertain whether the suspected or accused person understands
and speaks the language. Recital 10c provides for such interpretation
and translation to be in the person's native language or a language
he understands and allows him to fully exercise the right to defend
himself. 10d clarifies that the Directive should not compromise
any other procedural right available under the Member States'
national law.
79.8 Recital 11 notes that Member States should ensure
control is exercised over the adequacy of interpretation and translation.
The twelfth provides for a right to challenge a decision finding
there is no need for interpretation in accordance with procedures
in national law. However, the right does not require a separate
mechanism or complaint procedure and should not prejudice time
limits relevant to the execution of an EAW. Recital 12a enables
a Member State to be able to replace an interpreter when the quality
of interpretation is considered insufficient to guarantee the
right to a fair trial.
79.9 The fourteenth recital deals with the duty of
care towards those in a potentially weak position due to a physical
impairment. Member States should take appropriate steps to ensure
these persons are able to effectively exercise their rights. 14??
notes that when Member States employ videoconferencing they should
be able to rely on tools being developed in the context of European
e-Justice. 14a states that the Directive should be evaluated in
light of practical experience gained. 15 refers
to the need to translate certain essential documents as a minimum.
And recital 16a deals with the provision of national databases
of translators and interpreters.
79.10 Recital 16b 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 interpreted and implemented consistently with the ECHR
and its case law. The nineteenth recital explains that this Directive
is consistent with the principles of subsidiarity and proportionality.
The twentieth confirms that the UK and Ireland have opted in to
the measure, and twenty-first confirms that Denmark is not bound
by the measure.
ARTICLES
79.11 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 made aware 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, including where applicable
sentencing and the resolution of any appeal. The Directive does
not extend to proceedings in respect of the imposition of sanctions
from an authority other than a criminal court, until on appeal
the proceedings are pending before a court with criminal jurisdiction.
79.12 Article 2 describes the ambit of the
right to interpretation. Article 2(1) sets out the circumstances
in which interpretation must be given to a suspected or accused
person. Article 2(la) explicitly extends the right to interpretation
to communication between the suspected or accused and his legal
counsel. Article 2(2) provides for assistance to be provided for
those persons requiring interpretation who also have a hearing
or speech impediment shall receive assistance. Article 2(3) requires
Member States to ensure that a procedure or mechanism is in place
to ascertain the person understands and speaks the language of
the criminal proceedings and needs an interpreter. Article 2(4)
states that the person must have the right to challenge the decision
finding that there is no need for interpretation. They must also
have the right to complain about the quality of interpretation.
Article 2(4a) allows for technology such as videoconferencing,
to be used unless the physical presence of the interpreter is
required in order to safeguard the fairness of proceedings. 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. Article 2(6) required Member States to ensure
that interpretation provided is of a quality sufficient to safeguard
the fairness of proceedings.
79.13 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 written
translations of all documents, which are essential to ensure he
is able to defend himself and to safeguard his right to fair proceedings.
By Article 1(4) this does not affect national law rules on access
to such documents. Article 3(2) states that the essential documents
include decisions depriving a person of his liberty, the charge/indictment
and any judgement. Article 3(3) states that the competent authorities
shall decide in any given case which are the essential documents.
The suspect or accused will also be able to submit a reasoned
request to this effect. Article (3a) allows for passages of essential
documents which are not relevant, to be omitted from translation.
There must be a right to challenge a decision if for example documents
or passages of documents are not provided under 3(2) or 3(3).
There is also a right to complain about the quality of 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. Article
3(6) recognises there should be exception to the general provision
in Article 3 and that oral translation or oral summary of the
essential documents may be provided instead of a written translation,
providing this does not affect the fairness of the proceedings.
Article 3(7) states that the suspected or accused person may waive
his rights under this Article providing the suspected or accused
person has received prior legal advice or has otherwise obtained
full knowledge or the consequences and the waiver was unequivocal
and given voluntarily. Article 3(8) required Member States to
ensure that translation provided is of a quality sufficient to
safeguard the fairness of proceedings.
79.14 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.
79.15 Article 5 provides that Member States
shall take concrete measures to ensure that interpretation and
translation is of sufficient quality so that the suspected or
accused person (or person subject to an EAW) is able to exercise
his rights. Article 5(2) states that Member States shall endeavour
to establish a register or registers of independent translators
and interpreters. Article 5(3) requires the independent interpreters
and translators to observe confidentiality. Article 5a requires
Member States to request those responsible for the training of
judges, prosecutors and judicial staff involved in criminal proceedings
to give special attention to the particularities of communicating
with the assistance of interpreters. Finally, Article 5b provides
for a record to be kept of certain events of interpretation having
taken place.
79.16 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.
79.17 Articles 7, 8, and 9 deal with implementation,
reporting on compliance and entry into force. Member States will
have 36 months to implement the Directive into domestic legislation
once it has been published in the Official Journal. This does
not preclude countries from implementing the Directive before
the deadline.
The Minister's Explanatory Memorandum
79.18 The Lord Chancellor and Secretary of State
for Justice (Kenneth Clarke) deposited the agreed final draft
of the Directive and an accompanying Explanatory Memorandum on
9 June 2010. In the Explanatory Memorandum he says that the Government
continues to support the adoption of this Directive because it
sees a clear need for EU action: discrepancies between how Member
States have implemented Articles 5 and 6 ECHR have led to varying
standards in the interpretation and translation provided to suspects;
and this causes particular concern given EU citizens' right to
free movement, particularly UK nationals in other Member States.
The Government also thinks that this Directive would help to ensure
that the ECHR rights are fully complied with across the EU. And
by improving the trust Member States have in one another's legal
systems, the Government thinks that this Directive would help
mutual recognition work more effectively, and promote judicial
co-operation. From a financial perspective, the Government does
not anticipate that the draft as it currently stands would incur
significant increases in costs.
79.19 Turning to the detailed provisions of the Directive,
the Minister reports that the Government is content with all of
them. He adds that the Government supports recital eighteen in
particular: it is important to have clarity about the relationship
between this Directive and the ECHR as they both regulate the
same area. In relation to Article 3(2) (essential documents to
include decisions depriving a person of his liberty, the charge/indictment
and any judgement), the Minister says he is content that the drafting
is sufficiently specific to guarantee the rights of the defendant
are protected, whilst taking account of differences between legal
systems such as in the common law systems where, for example,
there may not be a "judgment" to be translated.
Ministers' letters of 19 April, 9 June and 30
June
79.20 The previous Parliamentary Under-Secretary
of State at the Ministry of Justice (Lord Bach) wrote on 19 April
to keep the previous Committee informed of progress in the negotiations.
He explained that the intention was for the proposal to be agreed
at first reading between the Council and European Parliament,
and set out the proposed timetable.
79.21 The Secretary of State at the Ministry of Justice
then wrote on 9 June informing the Committee that he had deposited
the agreed final draft of the Directive in Parliament and a further
Explanatory Memorandum. He also explained that on 27 May COREPER
had agreed the final draft of the Directive (document (b)), which
was expected to be voted on in plenary in the European Parliament
on 14 June. He added:
"It is unfortunate that in the post-election
period the Committee has not had the opportunity to consider this
later text and I apologise for the fact that agreement to this
text was an override of the Scrutiny Reserve Resolutions. I assure
you that this was purely due to the exceptional circumstances
surrounding the election, allied with the speed of negotiations.
Throughout the negotiation progress the UK has taken into consideration
the position of the Scrutiny Committees. My officials have also
provided updates to the Clerk of the Committee on the progress
of the negotiations and explained that it was likely that there
would be agreement to a first reading deal before the Committees
met following the election".
79.22 On 30 June the Minister wrote again to confirm
that the European Parliament voted on the Directive on 16 June
with an overwhelming majority in support: 637 votes in favour
to 21 against and 19 abstentions. The draft will be adopted at
a future meeting of the Justice and Home Affairs Council. The
Minister repeats his regret that scrutiny has been overridden
but reminds the Committee that the Government had taken our predecessors
views into account during the negotiations and kept it informed
of the progress of the negotiations and the likelihood of a first
reading deal.
Conclusion
79.23 We thank the previous Minister for his helpful
letter and the current Minister for his Explanatory Memorandum
and further letters. All are examples of how the Committee should
be kept informed of significant developments in negotiations with
the European Parliament under the ordinary legislative procedure.
Early warning of a first reading deal is particularly important,
as the trilogue negotiations are opaque and often hurried.
79.24 Our predecessors stated before that they
supported this initiative because there was evidence of a need
to improve translation and interpretation rights across the EU,
and to minimise the risks of miscarriages of justice, particularly
for UK nationals in other Member States.
79.25 We follow the same approach. And we note
that the UK's objectives have either been preserved or met in
the negotiations with the European Parliament.
79.26 In the particular circumstances of the election
we understand that the scrutiny override was unavoidable.
79.27 We duly clear documents (a) and (b) from
scrutiny.
343 "Area of Freedom, Security and Justice". Back
344
(31010) -: HC 19-xxviii (2008-09), chapter 16 (21 October 2009). Back
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