Directive on Translation and Interpretation in Criminal Proceedings: Overview and Analysis

1. The Directive on Translation and Interpretation in Criminal Proceedings:What is in it? Luca De Matteis Madrid, 15 March 2012

2. Outline 1. Introduction: the situation in Member States before the Directive 2. The “constitutional” boundaries of the Directive 3. The scope of the Directive (Article 1) 4. The right to interpretation (Article 2) 5. The right to translation (Article 3) 6. The question of quality (Article 5) 7. The entry into force of the Directive and the legal regime Madrid, 15 March 2012 - Directive on Right to Interpretation and Translation

3. The situation in Member States before the Directive • COM impact assessment in relation to 2009 initiative (8 July 2009, SEC (2009) 915): • Inadequacy of spontaneous compliance with the principles of Art. 6 ECHR with respect to interpretation/translation • Shortcoming of legal framework in MS • Relevant divergences in practical implementation of existing provisions • Issue of professional qualification and assessment of quality Madrid, 15 March 2012 - Directive on Right to Interpretation and Translation

4. The “constitutional” boundaries of the Directive Article 82 (2) TFEU: “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. […] They shall concern: […] (b) the rights of individuals in criminal procedure;” Madrid, 15 March 2012 - Directive on Right to Interpretation and Translation

5. The “constitutional” boundaries of the Directive • Article 8 (“Non-regression”) and Recital 33: link between the rights provided by the Directive and international Charters of rights: • Minimum standard (Article 8)  cannot derogate in peius from ECHR, Charter, relevant provisions of int’l law and national law providing higher level of protection (is the mention of the Charter appropriate?); see also Recital 5; • Open to developments (Recital 33)  any evolution in the case-law of ECHR and ECJ shall automatically have effect on the interpretation of the Directive. Madrid, 15 March 2012 - Directive on Right to Interpretation and Translation

6. The ECHR on interpretation and translation • Articles 5 (2) and 6 (3) a) and e) • Cases (in brief): • Competent authorities must prove that defendant speaks the language of the proceedings, not the opposite! (Brozicek vs. Italy, 19.12.1989); • Not only interpretation of what happens during hearings, but also translation of all acts necessary for full enjoyment of fair trial rights (Hermi vs. Italy, GC, 18.10.2006); • Adequate quality (Kamasinski vs. Austria, 19.12.1989); • Under supervision of competent authority (Cuscani vs.UK, 24.9.2002); • Provided free of costs (Luedicke vs. Germany, 28.11.1978). Madrid, 15 March 2012 - Directive on Right to Interpretation and Translation

7. The scope of the Directive:Objective scope (Art. 1 (1)) • Criminal proceedings: no definition offered  reference to case law of ECtHR (Engel and others vs. the Netherlands, 8 June 1976, § 70-81; Öztürk vs. Germany, 21 February 1984, § 53) • Extension beyond the boundaries of criminal proceedings stricto sensu? • The question of minor offences Madrid, 15 March 2012 - Directive on Right to Interpretation and Translation

8. The scope of the Directive:Objective scope (Art. 1 (1)) • European arrest warrant proceedings: • The reference is made necessary in view of the fact that Article 6 ECHR does not apply to extradition proceedings (e.g. H. vs. Spain, 15 December 1983); • Is this extension entirely in conformity with temporal scope? Madrid, 15 March 2012 - Directive on Right to Interpretation and Translation

9. The scope of the Directive:Temporal scope (Art. 1 (2)) • 2009 COM proposal: the rights should apply “from the time [a] person is informed by the competent authorities of a Member State the he is suspected of having committed a criminal offence until the conclusion of the proceedings” • The Directive: • From “informed” to “made aware… by official notification or otherwise”; • “Suspected or accused” and the question of the definition of phases in criminal proceedings; • Conclusion of proceedings, exclusion of execution of penalty (and the question of EAW) Madrid, 15 March 2012 - Directive on Right to Interpretation and Translation

10. The Right to Interpretation (Art. 2)Subjective issues • Who is interpretation for? The Court or the accused?  link to right to fair trial • Who needs interpretation? • “Who do not speak or understand the language of the proceedings” • Hearing and speech impediments (par. 3) • Ascertaining the need for interpretation (par. 4 and Recital 21) • Languages of interpretation (Recital 22) Madrid, 15 March 2012 - Directive on Right to Interpretation and Translation

11. The Right to Interpretation (Art. 2)Objective issues • What should be the object of interpretation? • In ordinary criminal proceedings • Communication between the suspected or accused person and his legal counsel (par. 2): • 2009 COM proposal • 2009 Council general approach • The final compromise • Proceedings for the execution of EAW • Remote interpretation (par. 6, Recital 31) Madrid, 15 March 2012 - Directive on Right to Interpretation and Translation

12. The Right to Interpretation (Art. 2)Procedural safeguards • The right to challenge (par. 5) • On the need for interpretation • On the quality of interpretation (replacement, Recital 26) • A specific procedure? (Recital 25) Madrid, 15 March 2012 - Directive on Right to Interpretation and Translation

13. The Right to Translation (Art. 3) • Derived by way of interpretation from Art. 6 ECHR by jurisprudence of the ECtHR (e.g. Kamasinski vs. Austria, 19 December 1989)  the case law indicates the functional and procedural boundaries of the right: • “All those documents or statements… which [are] necessary… in order to have the benefit of a fair trial” (§74) • “However, paragraph 3 (e) does not go as far as to require a written translation of all item of written evidence… the interpretation assistance provided should be such as to enable the defendant to have knowledge of the case against him and to defend himself…” (§74) Madrid, 15 March 2012 - Directive on Right to Interpretation and Translation

14. The Right to Translation (Art. 3):Temporal scope • Reference to “suspected person”  applies also to “pre-trial” (non-contentious investigation) phase, implying a right to obtain a form of access to the materials of the case collected in the course of the investigation • BUT: (Article 1 (4)) Directive does not grant right of access other than that already provided for by national law • Functional link to right of defence implies timely translation: e.g. rules on disclosure, deadlines for appeal must take into account the need for translation Madrid, 15 March 2012 - Directive on Right to Interpretation and Translation

15. The Right to Translation (Art. 3):Objective scope • Article 3 (1): “all” documents which are “essential” to ensure that suspected/accused persons are able to exercise their right of defence and to safeguard the fairness of the proceedings • Indicative nature of the list contained in Article 3 (2)  transposition will require taking into account other types of acts • Reference to “fairness of proceedings” implies a case by case approach with decision entrusted to competent authorities (par. 3)  not one solution! • The disappearance of the reference to “essential documentary evidence” Madrid, 15 March 2012 - Directive on Right to Interpretation and Translation

16. The Right to Translation (Art. 3):Objective scope • Special modalities (exceptions to the rule set out in Art. 3 (1)): • Partial translation (Art. 3 (4)): ‘passages of essential documents which are not relevant for the purposes of enabling suspected or accused persons to have knowledge of the case against them’; • Oral translation / oral summary (Art. 3 (7)): see Kamasinski vs. Austria • Also the decision to employ these modalities implies an assessment of the overall fairness of the proceedings and is therefore entrusted to competent authorities on a case-by-case basis. Madrid, 15 March 2012 - Directive on Right to Interpretation and Translation

17. The Right to Translation (Art. 3):Procedural safeguards • Right of petition (par. 3): request to translate further documents • Right of “appeal” (par. 5): against decision finding no need for translation • Right of complaint (par. 5): against quality of interpretation • Waiver of rights (par. 8): • Knowledge of consequences • Unequivocal • Voluntary Madrid, 15 March 2012 - Directive on Right to Interpretation and Translation

18. The quality of interpretation/translation • The 2009 COM proposal and the Resolution on best practices • Article 5 original MS initiative: Member States to ‘take concrete measures’ to ensure that the interpretation and translation provided would be of ‘adequate quality’ in order to allow that the suspected or accused person be ‘fully able to exercise his rights’; • Now Artt. 2 (8) and 3 (9) require a quality sufficient to ensure ‘that suspected or accused persons have knowledge of the case against them and are able to exercise their right of defense’ • Specific review procedure according to Artt. 2(5) and 3(5) and Record-keeping (Art. 7) • Register of qualified interpreters/translators (Art. 5 (2)) • Training (Art. 6) Madrid, 15 March 2012 - Directive on Right to Interpretation and Translation

19. Transposition (Art. 9) • Agreement on 3-year term • Declaration at the moment of adoption by Council (7 October 2010): “The Council encourages the Member States to implement the Directive as soon as possible, before the end of said period. The Council acknowledges that the period of 36 months for implementation of this Directive does not constitute a precedent for the period of implementation that has to be agreed upon in respect of the other measures [in] the Roadmap” Madrid, 15 March 2012 - Directive on Right to Interpretation and Translation

20. A Directive on fundamental rights under the Lisbon Treaty: which effects? • Art. 10 of Protocol 36 to the Treaty of Lisbon doesn’t apply • The powers of the Commission: • Report on implementation (Art. 10) • Infringement procedures (Art. 258, 260 TFEU) • The powers of the Court of Justice: • Generalized jurisdiction • Conformity with primary law, including Charter of fundamental rights of EU/ECHR • Conformity of national law implementing/contrasting with the Directive, including, with respect to self-executing provisions, possibility to disregard conflicting provisions (“direct effect” of the Directive?) Madrid, 15 March 2012 - Directive on Right to Interpretation and Translation

21. A Directive on fundamental rights under the Lisbon Treaty: which effects? • The role of national judges: • Parameter for interpretation (even before term for transposition ?) • Conforming practices • After term has expired: interpretation in conformity (Pupino) • Disregarding conflicting provisions of national law in case of contrast with self-executing provisions of the Directive Madrid, 15 March 2012 - Directive on Right to Interpretation and Translation

22. Thank you for your attention!¡Muchas gracias por su atenciòn!luca.dematteis@consilium.europa.eu Madrid, 15 March 2012 - Directive on Right to Interpretation and Translation