Explanatory Memorandum to COM(2009)338 - Right to interpretation and to 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(2009)338 - Right to interpretation and to translation in criminal proceedings. |
|---|---|
| source | COM(2009)338  |
| date | 08-07-2009 |
1. This proposal for a Council Framework Decision aims to set common minimum standards as regards the right to interpretation and translation in criminal proceedings throughout the European Union. The proposal is envisaged as a first step in a series of measures designed to replace the Commission's 2004 proposal for a Council Framework Decision on certain procedural rights in criminal proceedings throughout the European Union - COM(2004) 328, 28.4.2004 - which is withdrawn after due notification to the Council and the European Parliament. Agreement could not be reached on that proposal, despite 3 years' discussions in the Council Working Group, and it was effectively abandoned in June 2007, after a fruitless discussion in the Justice Council. Adopting a step-by-step approach is now seen as a generally acceptable way to proceed; it will also gradually help build confidence and contribute to enhancing mutual trust. This proposal should therefore be considered as part of a comprehensive package of legislation which will seek to provide a minimum set of procedural rights in criminal proceedings in the European Union. Rights covered in the 2004 proposal were, besides the right to free interpretation and translation, the right to legal advice, the right to information about rights (Letter of Rights), the right to specific attention for vulnerable defendants, the right to communicate with consular authorities and the right to communicate with the family. For this proposal, the Commission has decided to concentrate on the right to interpretation and translation as it was the least controversial right in the discussions of the 2004 proposal and there was information and research available on this right.
2. This 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.
3. As regards the legal basis, the proposal is based on Article 31 i of the Treaty on European Union. Article 31(1)(c) envisages that the EU may develop 'common action' so as to ensure compatibility in rules where necessary to improve cooperation. For judicial cooperation, in particular mutual recognition, it is necessary to have mutual trust. A certain degree of compatibility is necessary to improve mutual trust and hence, co-operation.
4. The right to interpretation and translation, which stems from the European Convention on Human Rights (ECHR), is fundamental for a person facing a criminal charge who does not understand the language of the proceedings so that the suspect knows the charges against him and understands the procedure. The suspect must be in a position to understand of what he is accused. Translations should be provided of essential procedural documents. In accordance with the ECHR, interpretation and translation must be provided free of charge.
Contents
- 5. Impact Assessment
- 2. BACKGROUND
- 3. THE RIGHT TO TRANSLATION AND INTERPRETATION AS ESTABLISHED UNDER THE ECHR
- 4. SPECIFIC PROVISIONS
- Article 1 - Scope of application
- Article 2 - The right to interpretation
- Article 3 - The right to translation of essential documents
- Article 4 - Member States to meet the 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
The proposal was subject to an Impact Assessment which is contained in document SEC(2009) 915. The Impact Assessment was examined, and subsequently approved, by the Impact Assessment Board on 27 May 2009. The Board's recommendations and how these were accommodated can be found at paragraph 25 of the Impact Assessment (ec.europa.eu/governance/impact/practice_en). The options set out were as follows:
(a) Maintaining the status quo would entail no EU action. The current situation whereby Member States are expected to comply with their ECHR obligations could be expected to continue as now with the perceived imbalance between prosecution and the accused which has hitherto hampered mutual recognition. This would have negligible economic consequences.
(b) Non-legislative measures such as recommendations would encourage exchanges between Member States and help to identify best practice. This option would lead to better awareness of ECHR standards by disseminating and recommending practices which help compliance. It would not achieve further approximation of legal standards.
(c) New instrument covering all rights along the lines of the 2004 proposal. Its implementation by Member States, monitoring by the Commission and ultimate recourse to the ECJ would help overcome differences in compliance with the ECHR and promote mutual trust. The economic impact would be twofold, first the cost of putting services in place to ensure rights are respected, and second, the gain in reduced costs of appeals.
(d) A measure restricted to cross-border cases would constitute a first step. It would need careful consideration so that any potential issue of discrimination between categories of suspects involved in cross-border versus domestic proceedings is addressed appropriately. As with the previous option, the economic impact would be twofold, first the cost of putting services in place to ensure rights are respected, and second, the gain in reduced costs of appeals, but to a lesser extent than above since it is less ambitious in scope.
(e) A step-by-step approach, beginning with measures on access to interpretation and translation, involving a new Framework Decision requiring Member States to provide minimum standards only for access to interpretation and translation is the favoured option. The economic impact would be twofold, first the cost of putting services in place to ensure rights are respected, and second, the gain in reduced costs of appeals.
The Impact Assessment identified the combination of options (b) and (e) as the preferred approach maximising synergies between legislative and non-legislative action. Therefore this Framework Decision should be followed up by a document on best practice.
6. Article 6 of the Treaty on European Union (TEU) provides that the Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and as they result from the constitutional traditions common to Member States. Moreover, in December 2000, the European Parliament, the Council and Commission jointly signed and solemnly proclaimed the Charter of Fundamental Rights of the European Union.
7. 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.
8. 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”.
9. 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”.
10. 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 Framework Decision represents an embodiment of the stated aim of enhancing the protection of individual rights.
11. 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.
2)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 reflects these rights in its Articles 6 and 47 to 50.
12. The European Court of Human Rights (ECtHR) has held on 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[8]. The interpreter must be competent and the judge must safeguard the fairness of the proceedings ( Cuscani v. UK i) .
13. The proposal for a draft Framework Decision sets out basic obligations and builds on the ECHR and the case-law of the ECtHR. The 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 Commission's Directorate-General for Interpretation during 2008 to identify whether there is 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.
14. The scope covers all persons suspected in respect of a criminal offence until final conviction (including any appeal). Here, the term 'suspect' is used to cover such persons. This is intended as an autonomous term, irrespective of the designation of such persons in national proceedings.
15. 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 (e.g. on arrest or when the suspected person is no longer free to leave police custody).
The Article clarifies that the proposal also applies to European Arrest Warrant cases. It is an important point that European Arrest Warrant cases are covered since the Framework Decision concerning the European Arrest Warrant only addresses these rights in general terms. In this respect, the proposal is a further development of Article 5 ECHR.
16. 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. The right is also extended to legal advice given to the suspect if his lawyer speaks a language that he does not understand.
17. The suspect has the right to 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[12]. 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).
In respect of proceedings for the execution of a European Arrest Warrant, the European Arrest Warrant should be translated.
18. 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 [13].
19. 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.
20. The purpose of this Article is to ensure that setting common minimum standards in accordance with this Framework Decision does not have the effect of lowering standards in certain Member States and that the standards set in the ECHR are maintained. Member States remain entirely at liberty to set standards higher than those agreed in this Framework Decision.
Article 7 – Implementation
21. This Article requires that Member States must implement the Framework Decision by x /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
22. XX 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 Framework Decision, accompanied, if necessary, by legislative proposals.
23. This Article provides that the Framework Decision will enter into force on the twentieth day following that of its publication in the Official Journal of the European Union .
24. 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.
25. 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.