European Scrutiny Committee Contents

79 Interpretation and translation rights in criminal proceedings




+ ADDs 1-3



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

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

Legal baseArticle 82(2)(b) TFEU; QMV; co-decision
Deposited in Parliament(b) 4 June 2010
Basis of considerationEM of 9 June; Minister's letters of 19 April, 9 June and 30 June 2009
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

To be discussed in CouncilNo date set
Committee's assessmentLegally important
Committee's decision(a) Cleared (b) Cleared

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).


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.


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.


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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