Identifying Translation as a Separate Right in Criminal Proceedings

1. QUALETRA JUST/2011/JPEN/AG/2975 With financial support from the Criminal Justice Programme of the European Commission Directorate General Justice Identifying written translation in criminal proceedings as a separate right: scope and supervision under European law QUALETRA, London, 4 April 2013 James Brannan European Court of Human Rights This publication has been produced with the financial support of the Criminal Justice Support Programme of the European Union. The contents of this publication are the sole responsibility of the authors and can in no way be taken to reflect the views of the European Commission.

2. Article 5: Right to liberty and security § 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.

3. Article 6: Right to a fair trial § 3.  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.

4. Scope of guarantee “... Article 6 § 3 (e) does not state that every accused person has the right to receive the free assistance of an interpreter at the oral hearing ; it states that this right is accorded to him "if he cannot understand or speak the language used in court”. ... the latter words do no more than indicate the conditions for the granting of the free assistance of an interpreter. Furthermore, the English text "used in court", being wider than the French expression "employée à l’audience" ..., furnishes an additional argument in this respect. Luedicke, Belkacem and Koç v. Germany (1978)

5. Scope of guarantee “The right, stated in paragraph 3 (e) of Article 6, to the free assistance of an interpreter applies not only to oral statements made at the trial hearing but also to documentary material and the pre-trial proceedings.” Kamasinski v. Austria § 74 (1989)

6. Scope of guarantee “right to the free assistance of an interpreter for thetranslation or interpretation of all those documents or statements in the proceedings instituted against him which it is necessary for him to understand or to have rendered into the court’s language in order to have the benefit of a fair trial.” Kamasinski v. Austria § 74 (1989)

7. Limit to written translation “However, paragraph 3 (e) does not go so far as to require a written translation of all items of written evidence or official documents in the procedure. The interpretation [sic] assistance provided should be such as to enable the defendant to have knowledge of the case against him and to defend himself...” Kamasinski v. Austria § 74 (1989)

8. Indictment “A defendant not conversant with the court’s language may in fact be put at a disadvantage if he is not also provided with a written translation of the indictment in a language he understands” “a written translation of the indictment is unnecessary if sufficient oral information as to its contents is given to the accused” Kamasinski v. Austria (1989)

9. Judgment ““Mr Kamasinski did not receive an English translation of the judgment delivered by the Regional Court ... The Court agrees with the Commission that the absence of a written translation of the judgment does not in itself entail violation of Article 6 § 3 (e) ... it is clear that, as a result of the oral explanations given to him, Mr Kamasinski sufficiently understood the judgment and its reasoning to be able to lodge, ... an appeal”” Kamasinski v. Austria (1989) See also Baka v Romania (2009)

10. Quality assurance? “In view of the need for the right guaranteed by paragraph 3 (e) to be practical and effective, the obligation of the competent authorities is not limited to the appointment of an interpreter but, if they are put on notice in the particular circumstances, may also extend to a degree of subsequent control over the adequacy of the interpretation provided .” Kamasinski v Austria § 74

11. Burden of proof Brozicek v. Italy(1989) • “On receipt of this request, the Italian judicial authorities should have taken steps to comply with it so as to ensure observance of the requirements of Article 6 § 3 (a), unless they were in a position to establish that the applicant in fact had sufficient knowledge of Italian to understand from the notification the purport of the letter notifying him of the charges brought against him”

12. Oral translation by default? “...it should be noted that the text of the relevant provisions refers to an ‘interpreter’, not a ‘translator’. This suggests that oral linguistic assistance may satisfy the requirements of the Convention.” (Husain v. Italy, 2005, decision) See also Hermi v. Italy (2006), Baka v. Romania (2009)

13. Assessment of need HermiChamber judgment 2005: “... It has not been established whether and to what extent the applicant understood Italian and was capable of grasping the meaning of a legal document of some complexity. In that context, the financial, social and cultural situation of the person concerned, and the language difficulties likely to be encountered in a foreign country, are of relevance ...” HermiGrand Chamber judgment 2006: “... unlike the Chamber, the Grand Chamber considers that it is clear from the case file that the applicant had sufficient command of Italian to grasp the meaning of the notice informing him of the date of the appeal court hearing. ...”

14. Quality of translation Khatchadourian v Belgium (decision, 2010) The applicant (a Lebanese national facing trial on fraud charges) received a translation of the prosecutor’s final submissions (228 pages for which he waited 15 months) but complained that it was incomprehensible (mixture of Eastern and Western Armenian). A request for translations of other case-file material was denied. The Belgian courts and the Strasbourg Court found that he must have understood the gist of the translation. He had also had an interpreter throughout the pre-trial proceedings. No right to translation of all documents.

15. “The rules on how much material is translated vary from one Member State to the next and also in accordance with the nature of the case. This variation is acceptable as long as the proceedings remain 'fair'” . “Although they are often considered as one group, interpreters and translators, having different skills and different roles to play during the criminal proceedings, should be treated as two distinct professional groups”. Documents should include “all the statements of witnesses that are provided in writing, and evidence to be tendered by both sides”. Commission Green Paper 2003

16. – A suspected or accused person who does not understand or speak the language of the criminal proceedings concerned will be provided without delay with interpretation and translation during criminal proceedings before investigative and judicial authorities, including during police questioning, during all court hearings and during any necessary interim hearings. – The directive aims at achieving a more consistent implementation of the rights and guarantees set out in Article 6 of the European Convention on Human Rights, and to provide a further development within the European Union of the minimum standards set out in this Convention and in the EU Charter of Fundamental Rights. (from Council press release of 07/10/10) Directive 2010/64/EU of 20 October 2010 on the right to interpretation and translation in criminal proceedings

17. Identifies written translation as an autonomous and more visible right Right to challenge a refusal to provide translations Emphasis on quality and possibility of complaint The authorities shall decide whether any other document is essential on a case-by-case basis Right for defence to request specific documents Provision of translations “within a reasonable period of time” European Arrest Warrant (into third language) Directive Article 3: Strengths

18. Limited number of documents listed (no mention of evidence) Discretion left to authorities Possibility of waiving the right to translation Passages that are not relevant do not need to be translated No procedure to establish need for translation Oral translation or oral summary of essential documents (but should remain an exception) Vague definition of quality and how will complaints be adjudicated? Directive Article 3: Weaknesses

19. "Member States should ensure that, when providing information in accordance with this Directive, suspects or accused persons are provided, where necessary, with translations or interpretation into a language that they understand, in accordance with the standards set out in Directive 2010/64/EU.” (Recital 25) “Member States shall ensure that suspects or accused persons receive the Letter of Rights written in a language that they understand.” (Article 3 § 5) Directive 2012/13/EU of 22 May 2012 on the right to information in criminal proceedings

20. Article 7: “Translations of such information shall include at least any decision ending the criminal proceedings related to the criminal offence suffered by the victim, and upon the victim's request, reasons or a brief summary of reasons for such decision, except in the case of a jury decision or a decision where the reasons are confidential ...” Directive 2012/29/EU of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime

21. Transposition: current situation(from EU Procedural Rights in Criminal Proceedings 2009, Spronken et al. – with permission)

22. Transposition: current situation

23. Transposition: French Projet de loi (02/13)

24. summons / notice of hearing arrest warrant (EAW into third language) police statement / report / charge sheet “indictment” by prosecution / investigating judge etc. statements by complainants and witnesses suspect’s own statement to police / judicial authority other evidence, for and against (all exhibits?) key written reports by experts list or summary of prosecution evidence? orders, decisions, judgments (verdict and sentence), including orders on deprivation of liberty, remand, committal instructions for exercise of right of appeal Transposition: essential documents

25. Thank you for listening!http://www.echr.coe.int/echr/james.brannan@echr.coe.int