Right to interpretation and translation in criminal proceedings: the legislative works restart

The necessity to set up common minimum standards as regard to procedural rights applying in criminal proceedings throughout the European Union was already clear for the European Parliament in 2001 when, following the terrorist attacks of 9/11, the European Union adopted a series of measures such as the European Arrest Warrant and the Framework Decision on terrorism.

However, nobody did anything in this field for several years because the European Commission as well as the Member States believed that national legislations were sufficient.

This was everything but self-evident. Indeed, the jurisprudence of the European Court of Human rights in Strasbourg as well as the increasing number of refusals to apply the European Arrest Warrant issued by a judge of another Member State, especially after the EU enlargement to 27 Member States in 2004 suggested quite the opposite.

In April 2004, the European Commission finally submitted a Proposal for a Framework decision on certain procedural rights in criminal proceedings throughout the European Union. After years of debates and oppositions, especially coming from the United Kingdom, the possibility for a (unanimous) agreement raised following a proposal of the European Commission.

Finally, the 1 July 2009 the Presidency of the Council of the European Union issued a proposal concerning the Road map for strengthening procedural rights of suspected or accused persons in criminal proceedings approved on 30 November 2009.

The European Commission submitted a Proposal for a Framework Decision on the right to interpretation and to translation in criminal proceedings on the 8 July 2009 based on the Road Map with attached an impact assessment.

 On 15 July 2009 the Swedish Presidency also submitted a Draft Resolution of the Council and of representatives of the Member States’ governments in the Council, aimed at promoting the right to translation and interpretation in criminal proceedings.

The aim of the Resolution was to complement the proposal for a framework decision submitted by the Commission.

After intense negotiations, on 23 October 2009, the Council defined general guidelines both in relation to the framework decision of the Council and on the right to interpretation and translation on criminal proceedings and the related resolution.

Following the entry into force of the Lisbon Treaty on 1 December 2009, Member States decided to restart the legislative initiative under a different framework, i.e. a proposal for a directive to be approved in codecision with the European Parliament, on the basis of article 76 b) TFEU.

Given the urgency to ensure that each legislative proposal respects the principles of subsidiarity and proportionality (art. 5 protocol 2 of the Treaty of Lisbon) the Member States’ proposal re-used the impact assessment (doc. SEC(2009) 915 final) made by the Commission.

Concerning the resolution proposal of the Council it will be adopted (hopefully with the European Parliament’s consent) when the Directive will be adopted.

What is going to happen now?
The committee in charge within the European Parliament has now been appointed and will be LIBE (Civil Liberties, Justice and Home Affairs) with Baroness Sarah Ludford as rapporteur. Since it is a priority also under the Spanish Presidency it will be probably be adopted in 2010 (also because the unanimity of the Council is no longer a requirement and even in case of an “emergency break” foreseen in article 87 TFEU, the adoption of the Directive will be postponed but cannot blocked).

From the Explanatory memorandum attached to the proposal for a Directive:

“2. SPECIFIC PROVISIONS

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.”
This initiative for a Directive sets out basic obligations and builds on the ECHR and the case-law of the ECtHR. In accordance with Article 82(2), 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 also in situations not explicitly dealt with in this Directive. However, the level of protection should never fall below the standards provided by the ECHR, as interpreted in the caselaw of the ECtHR.

This initiative for a Directive is gender neutral: the terms “he” and “his” are used throughout the text to refer to the suspected or accused person or to that person’s legal council, as the case may be. The terms are intended to be gender neutral and to cover both male and female suspected or accused persons and male and female legal councils.

Article 1 – Scope of application

The scope covers all persons that are made aware by the competent authorities of a Member State that they are suspected or accused of having committed a criminal offence until the conclusion of the proceedings, which is understood to mean the final determination of the question whether the suspected or accused person has committed the offence. The final determination means that the guilt or innocence of the suspected or accused person has been determined and it is not possible to appeal. The term “suspected or accused person” is intended to be an autonomous term, irrespective of the designation of such persons in national proceedings. The scope does not include proceedings which may lead to sanctions being imposed by an authority other than a criminal court (typically administrative proceedings), as long as the imposed sanction has not been appealed to such a court.

The Article clarifies that the initiative also applies to European Arrest Warrant cases. It is important that European Arrest Warrant cases are covered by the Directive, since the Framework Decision on the European Arrest Warrant and the surrender procedures between Member States 1 only addresses the rights on interpretation and translation in general terms.

Article 2 – The right to interpretation
This Article lays down the basic principle that interpretation, including of communication between the suspected or accused person and his/her legal counsel, shall be provided during the investigative and judicial phases of the proceedings, i.e. during police questioning, at trial and at any interim hearings or appeals, and may be provided in other situations. In this context, recital 10 recalls the case-law of the ECtHR according to which the suspected or accused person should be able, inter alia, to explain to his legal counsel his version of the events, point out any statements with which he disagrees and make his legal counsel aware of any facts that should be put forward in the defence.

This Article clarifies that it does not affect rules of national law concerning the presence of a legal counsel during any stage of the criminal proceedings..

1 GU L 190 del 18.7.2002, pag. 1.

Article 3 – The right to translation of essential documents
The suspected or accused person has the right to translation of essential documents, or at least the important passages of the documents (if, for example, the documents are extremely extensive) in order to safeguard the fairness of the proceedings. It is the competent authorities that decide which are the essential documents, but essential documents shall always include the charge sheet or indictment as well as any judgments. Translation should also be provided of any detention order or order depriving the person of his liberty.

In respect of proceedings for the execution of a European Arrest Warrant, the European Arrest Warrant shall be translated by the executing Member State.

An oral translation or an oral summary may be provided on condition that it does not affect the fairness of the proceedings and that it is appropriate to provide translation in such a form.

Article 4 – Member States to meet the costs of interpretation and translation
This Article provides that the costs of interpretation and translation are to be met by the Member State, irrespective of the outcome of the proceedings.

Article 5 – Quality of the interpretation and translation
This Article sets out the basic requirement to safeguard the quality of interpretation and translation.

Recommendations in this respect can be found in the Resolution of the Council and of the Governments of the Member States meeting within the Council fostering the implementation by Member States of the rights to interpretation and to translation in criminal proceedings.

Article 6 – Non-regression clause

The purpose of this Article is to ensure that setting common minimum standards in accordance with this Directive does not have the effect of lowering standards in certain Member States and that the standards set in the ECHR or other relevant international agreements are maintained. Member States remain entirely at liberty to set standards higher than those agreed in this Directive.

Article 7 – Implementation
This Article requires that Member States must implement the Directive at the latest 30 months after its entry into force and, by the same date, send the text of the provisions transposing it into national law to the Council and the Commission.

Article 8 – Report
42 months after the entry into force of the Directive, the Commission must submit a report to the European Parliament and to the Council, assessing the extent to which the Member States have taken the necessary measures in order to comply with this Directive, accompanied, if necessary, by legislative proposals.

Article 9 – Entry into force

This Article provides that the Directive will enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.