Explanatory Memorandum to COM(2010)82 - Right to interpretation and translation in criminal proceedings - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2010)82 - Right to interpretation and translation in criminal proceedings. |
|---|---|
| source | COM(2010)82  |
| date | 09-03-2010 |
1. This proposal for a Directive of the European Parliament and the Council aims to set common minimum standards as regards the right to interpretation and translation in criminal proceedings throughout the European Union. The proposal is the first step in a series of measures set out in the Procedural Rights Roadmap, adopted in Council on 30 November 2009 instructing the Commission to put forward proposals on a 'step by step' basis. This approach is now seen as the best way to proceed; it will gradually help build confidence and contribute to enhancing mutual trust. This proposal should therefore be considered as part of a package of legislation to be presented over the next few years which will provide a minimum set of procedural rights in criminal proceedings in the European Union.
2. The proposal seeks to improve the rights of suspects who do not understand and speak the language of the proceedings. Having common minimum standards in relation to these rights should facilitate the application of the principle of mutual recognition, thereby improving the functioning of judicial co-operation between Member States of the EU.
3. The proposal is similar to, and replaces, one which was put forward as a draft Framework Decision on 8 July 2009 i. The text was discussed in Council working groups. Agreement was reached on a general approach at the Justice Council of 23 October 2009, but there was not enough time for adoption before 1 December 2009, date of entry into force of the Lisbon Treaty so that earlier proposal became obsolete.
4. As regards the legal basis, the proposal is based on Article 82 i of the Treaty on the Functioning of the European Union (TFEU). That Article provides that, "[t]o 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:
(a) mutual admissibility of evidence between Member States;
(b) the rights of individuals in criminal procedure;
(c) the rights of victims of crime;
(d) […]" .
For mutual recognition to function well it is necessary to have mutual trust. A certain degree of compatibility is necessary to improve mutual trust and hence, co-operation.
5. The right to interpretation and translation, which stems from the European Convention on Human Rights (ECHR) and can also be derived from the EU Charter of Fundamental Rights i, is fundamental for a person facing a criminal charge who does not understand the language of the proceedings so that he knows the charges against him and understands the procedure. In accordance with the ECHR, interpretation and translation must be provided free of charge.
6. Impact Assessment - SEC(2009)915 and its Summary SEC(2009)916 In order to inform the July 2009 proposal, the Commission carried out an Impact Assessment which is valid mutatis mutandis for the present proposal for a Directive. The report on the Impact Assessment is available at ec.europa.eu/governance/impact/ia_carried_out
Contents
- 2. BACKGROUND
- 3. THE RIGHT TO TRANSLATION AND INTERPRETATION AS ESTABLISHED UNDER THE ECHR AND UNDER THE EU CHARTER OF FUNDAMENTAL RIGHTS
- 4. SPECIFIC PROVISIONS
- Article 2 - Right to interpretation
- Article 3 - Right to translation of essential documents
- Article 4 - Costs of interpretation and translation
- Article 5 - Quality of the interpretation and translation
- Article 6 - Non-regression clause
- Article 9 - Entry into force
- 5. SUBSIDIARITY PRINCIPLE
- 6. PROPORTIONALITY PRINCIPLE
7. Article 6 i of the Treaty on European Union (TEU) provides that fundamental rights, as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law. Article 6 i TEU provides that the Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the TFEU and TEU. Article 47 of the Charter of Fundamental Rights guarantees the right to a fair trial, including the right to legal advice and representation, while Article 48 provides that the rights of the defence should be respected.
8. The Presidency Conclusions of the Tampere European Council i stated that mutual recognition should become the cornerstone of judicial cooperation, but makes the point that mutual recognition "...and the necessary approximation of legislation would facilitate […] the judicial protection of individual rights" i.
9. The Commission Communication to the Council and the European Parliament of 26 July 2000 on Mutual Recognition of Final Decisions in Criminal Matters i stated that “it must therefore be ensured that the treatment of suspects and the rights of the defence would not only not suffer from the implementation of the principle [of mutual recognition] but that the safeguards would even be improved through the process”.
10. This was endorsed in the Programme of Measures to Implement the Principle of Mutual Recognition of Decisions in Criminal Matters i ("Programme of Measures"), adopted by the Council and the Commission. It pointed out that “mutual recognition is very much dependent on a number of parameters which determine its effectiveness”.
11. These parameters include mechanisms for safeguarding the rights of suspects (parameter 3) and the definition of common minimum standards necessary to facilitate application of the principle of mutual recognition (parameter 4). This proposal for a Directive represents an embodiment of the stated aim of enhancing the protection of individual rights.
12. The Commission put forward in 2004 a comprehensive proposal i for a legislation covering some important rights of defendants in criminal proceedings. This proposal could not be adopted by Council.
13. On 30 November 2009, the Justice Council adopted a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings i calling for the adoption of five measures covering some important procedural rights, based on a 'step-by-step' approach and inviting the Commission to present the necessary proposals to this end. The first measure envisaged in the Roadmap concerns the right to interpretation and translation.
14. The Stockholm Programme, adopted by the European Council of 10-11 December 2009 i, reaffirmed the importance of the rights of the individual in criminal proceedings as a fundamental value of the Union and an essential component of mutual trust between Member States and of public confidence in the EU. The Stockholm Programme refers to the Roadmap as being integral part of the multiannual programme and calls on the Commission to come forward with appropriate proposals for its swift implementation.
3. THE RIGHT TO TRANSLATION AND INTERPRETATION AS ESTABLISHED UNDER THE ECHR AND UNDER THE EU CHARTER OF FUNDAMENTAL RIGHTS
15. Article 5 ECHR – Right to liberty and security – stipulates that:
" i Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (…)
(f) the lawful arrest or detention of a person …with a view to …extradition.
Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”
(…)
Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."
And Article 6 – Right to a fair trial – stipulates that:
" i Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(…)
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court."
The Charter of Fundamental Rights of the European Union enshrines these rights in its Articles 6 and 47 to 50. In particular, Article 47 guarantees the right to a fair trial, including the right to legal advice and representation; Article 48 guarantees respect for the presumption of innocence and the rights of the defence i.
16. The European Court of Human Rights (ECtHR) has held in relation to Article 6 ECHR that the accused has the right to interpretation free of charge, even in the event of his conviction, that he has a right to receive the documents setting out the charge in a language that he understands, that the interpretation must be sufficient to allow the person charged to understand the proceedings and that the interpreter must be competent. That the accused has the right to interpretation free of charge, even in the event of his conviction was established in Luedicke, Belkacem and Koç v. Germany i. In Kamasinski v. Austria i, it was established that the interpretation provided should be of a high enough standard to enable the defendant to have knowledge of the case against him and to defend himself. The right applies to documentary material and the pre-trial proceedings. The ECtHR held that the standard of interpretation must be 'adequate' and that details of the charge must be given to the person in a language that he understands ( Brozicek v. Italy i ). It is for the judicial authorities to prove that the defendant speaks the language of the court adequately and not for the defendant to prove he does not[14]. The interpreter must be competent and the judge must safeguard the fairness of the proceedings ( Cuscani v. UK i ) .
17. The proposal for a draft Directive sets out minimum requirements and builds on the ECHR and the case-law of the ECtHR. The Commission's Reflection Forum on Multilingualism and Interpreter Training i produced a report with recommendations on the quality of interpretation and translation. This Report was the fruit of meetings of the Reflection Forum convened by the Directorate-General for Interpretation during 2008 to identify whether there was a need for action and if so, what action could be taken. The Forum concluded that there was a need and set out Recommendations as to how to improve the provision of competent and qualified interpreters in criminal proceedings. The Recommendations included having a Curriculum in Legal Interpreting and a system of accreditation, certification and registration for legal interpreters.
18. The Directorate-General for Translation of the European Commission (DGT) has launched the European Master's degree in Translation (EMT) initiative. In cooperation with an expert group consisting of eminent academics, a reference framework, made up of six competencies, for translator's university education has been created. In September 2009, the DGT set up a network of high-level translation programmes at Masters' level throughout the EU to pursue excellence in translator education, including the specialised field of legal translation, and enhance the translator profession in all member states.
19. Where necessary, appropriate use may be made of funding possibilities available at the level of the European Union to support member States' efforts to comply with the requirements of this legislation, in particular as regards State-funded translation and interpretation facilities.
Article 1 - Scope of application
19. The scope covers criminal proceedings and proceedings for the execution of a European Arrest Warrant. It covers any person from the time that they are suspected of having committed a criminal offence until the conclusion of the proceedings (including any appeal). It is an important point that European Arrest Warrant cases are covered since the Framework Decision on the European Arrest Warrant only addresses these rights in general terms. In this respect, the proposal is a further development of Article 5 ECHR.
20. Since the case-law of the ECtHR has clarified that persons being questioned in relation to offences, whether or not formally charged, should be covered by Article 6 ECHR, persons arrested or detained in connection with a criminal charge also come within the ambit of this provision. These rights start to apply from the time when the person is informed that he is suspected of having committed an offence.
21. This Article lays down the basic principle that interpretation should 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. This includes interpretation of communication between the suspected or accused person and his lawyer. There should be a system in place to ascertain whether the person needs an interpreter and for the person to challenge a decision that an interpreter is not needed or to challenge the quality of the interpretation.
22. European Arrest Warrant proceedings are explicitly covered.
23. The suspect has the right to written translation of essential documents in order to safeguard the fairness of the proceedings. In Kamasinski v. Austria i , the ECtHR stated that the right to interpretation applied to 'documentary material' and that the accused should have sufficient knowledge of the case against him to enable him to defend himself[18]. The essential documents for the criminal proceedings should therefore include the charge sheet or indictment and any relevant documentary material such as key witness statements needed in order to understand 'in detail, the nature and cause of the accusation against him' in accordance with Article 6(3)(a) of the ECHR. Translation should also be provided of any detention order or order depriving the person of his liberty and the judgment, which is necessary for the person to exercise his right of appeal (ECHR Protocol 7, Article 2). If the documents are very lengthy, translations can be limited to the relevant passages.
24. In respect of proceedings for the execution of a European Arrest Warrant, the European Arrest Warrant should be translated.
25. A person may also waive their right to translation on the condition that they have received legal advice beforehand.
26. This Article provides that the costs of interpretation and translation are to be met by the Member State. That the accused has the right to interpretation free of charge, even in the event of his conviction was established in Luedicke, Belkacem and Koç v. Germany [19].
27. This Article sets out the basic requirement to safeguard the quality of interpretation and translation. Recommendations in this respect can be found in the Report of the Reflection Forum on Multilingualism and Interpreter Training i.
28. 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 European Convention on Human Rights, in the Charter of Fundamental Rights and in other relevant provisions of international law are maintained. Member States remain entirely at liberty to set standards higher than those agreed in this Directive.
Article 7 – Implementation
29. This Article requires that Member States must implement the Directive by xx/xx/ 20xx 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
30. 12 months after implementation, 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.
31. 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 .
32. The objective of the proposal cannot be sufficiently achieved by Member States alone, since the aim of the proposal is to promote trust between them and it is therefore important to agree on a common minimum standard that applies throughout the whole of the European Union. The proposal will approximate Member States' substantive procedural rules in respect of interpretation and translation in criminal proceedings in order to build mutual trust. The proposal therefore complies with the subsidiarity principle.
33. The proposal complies with the proportionality principle in that it does not go beyond the minimum required in order to achieve the stated objective at European level and what is necessary for that purpose.