TRAFUT SEMINAR

1. TRAFUT SEMINAR “Language assistance in criminal proceedings - from the ECHR to the EU Directive” James Brannan European Court of Human Rights Madrid, 15 March 2012

2. Right to life (2) Prohibition of torture and inhuman or degrading treatment (3) Prohibition of forced labour (4) Right to liberty and security (5) Right to a fair trial/hearing within a reasonable time (6) No crime/punishment without law (7) Right to respect for private and family life (8) Freedom of religion (9) Freedom of expression (10) Freedom of assembly and association (11) Right to marry (12) Right to an effective remedy (13) Prohibition of discrimination (14) Protection of property (Article 1 of Protocol No. 1) Violations of the European Convention on Human Rights

3. 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.  Toute personne arrêtée doit être informée, dans le plus court délai et dans une langue qu’elle comprend, des raisons de son arrestation et de toute accusation portée contre elle.

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

5. Article 6: Droit à un procès équitable 6 § 3.  Tout accusé a droit notamment à : (a)  être informé, dans le plus court délai, dans une langue qu’il comprend et d’une manière détaillée, de la nature et de la cause de l’accusation portée contre lui ; ... (e)  se faire assister gratuitement d’un interprète, s’il ne comprend pas ou ne parle pas la langue employée à l’audience.

6. Article 8 - Non-regression clause Nothing in this Directive shall be construed as limiting or derogating from any of the rights and procedural safeguards that are ensured under the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Charter of Fundamental Rights of the EU, other relevant provisions of international law or the law of any Member State which provides a higher level of protection. EU Directive on the right to interpretation and translation in criminal proceedings

7. Preamble § 33 The provisions of this Directive that correspond to rights guaranteed by the ECHR or the Charter should be interpreted and implemented consistently with those rights, as interpreted in the relevant case-law of the European Court of Human Rights and the Court of Justice of the European Union. EU Directive on the right to interpretation and translation in criminal proceedings

8. Interpretation of rights in ECtHR case-law • 1) When does language assistance have to be provided? • 2) Is the translation of documents also an obligation? • 3) Should language assistance be free of charge? • 4) Is the choice of translator/interpreter important? • 5) What quality assurance should be provided?

9. Article 5 (arrest and detention) Violation of Article 5 § 2 in Ladent v Poland 2008 “In the present case, it appears that the applicant, a French national, upon his arrest was informed about the reasons for it and the charges against him in Polish. The Court observes that the applicant claimed that during his arrest and 10-day detention he was not informed in a language which he understood why he was deprived of his liberty.”

10. Article 5 (arrest and detention) Violation of 5 § 1 in Čonka v. Belgium2002 • “only one interpreter was available to assist the large number of Roma families who attended the police station in understanding the verbal and written communications addressed to them and, although he was present at the police station, he did not stay with them at the closed centre.”

11. Article 5 (arrest and detention) Violation of 5 § 4 (right to speedy review of detention) in Shannon v. Latvia2009 • “The Court notes that the delays were chiefly caused by the Centre District Court's erroneous decision to return the applicant's appeal to him for translation, even though the domestic legislation provided that the translation is to be ensured by that court, and its failure to provide the applicant with a translation of its decision in a timely manner.”

12. Article 5 (arrest and detention) Violation of 5 § 4 (challenge to lawfulness of detention) in Rahimi v Greece 2011 « De plus, il avait reçu une brochure d'information sur certains des recours disponibles, rédigée dans une langue qui lui était en principe incompréhensible. En effet, ledit document était rédigé en arabe et, comme il ressort du dossier, la langue maternelle du requérant était le farsi. »

13. Article 6 (3 § a and 3 § e)Luedicke ... (free of charge) “... the Court cannot but attribute to the terms ‘gratuitement’ and ‘free’ the unqualified meaning they ordinarily have in both of the Court’s official languages: these terms denote neither a conditional remission, nor a temporary exemption, nor a suspension, but a once and for all exemption or exoneration.” Luedicke, Belkacem and Koç v. Germany (1978) § 40 See more recently Isyar v Bulgaria (2008) also Akbingöl v. Germany (decision) (2004)

14. Kamasinski (translation of documents) Kamasinski v Austria (1989) § 74 “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. Paragraph 3 (e) signifies that a person ‘charged with a criminal offence’ who cannot understand or speak the language used in court has the right to the free assistance of an interpreter for the translation 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.”

15. Kamasinski (translation of documents) “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 assistance provided should be such as to enable the defendant to have knowledge of the case against him and to defend himself, notably by being able to put before the court his version of the events.”

16. Kamasinski (registered interpreters) “The Court is not called on to adjudicate on the Austrian system of registered interpreters as such, but solely on the issue whether the interpretation assistance in fact received by Mr Kamasinski satisfied the requirements of Article 6.” Kamasinski §73 see also Baka v Romania (2009), Coban v. Spain (decisions 2003 & 2006), Özkan v Turkey, (decision 2006)

17. Kamasinski (quality) “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 § 74 see also Khatchadourianv. Belgium (decision 12/01/2010)

18. Kamasinski (quality) Osmani and Others v. FYROM (decision, 2000)(referring to Kamasinski): “an interpreter must be competent in order for the applicant’s right under Article 6 § 3 (e) to be practical and effective .”

19. Brozicek (translation on request) 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

20. Güngör (communication with counsel) Güngör v Germany (2001) • Le requérant soutient que le refus des juridictions allemandes de désigner un interprète à la charge de l’Etat pour l’assister dans ses entretiens avec l’avocat de son choix a méconnu les droits de la défense énoncés à l’article 6 § 3 b), c) et e) de la Convention. ... • ... la Cour estime que les juridictions internes ont, en s’appuyant sur des indices convaincants et d’une manière qui ne saurait être qualifiée d’arbitraire, pu valablement considérer que le requérant maîtrisait suffisamment l’allemand pour pouvoir se passer de l’assistance d’un interprète dans ses entretiens avec son avocat dans la procédure litigieuse.

21. Uçak (choice of interpreter) Uçak v the United Kingdom (decision, 2002) “The Court considers that it is not appropriate under Article 6 § 3(e) to lay down any detailed conditions concerning the method by which interpreters may be provided to assist accused persons. An interpreter is not part of the court or tribunal within the meaning of Article 6 § 1 and there is no formal requirement of independence or impartiality as such. The services of the interpreter must provide the accused with effective assistance in conducting his defence and the interpreter’s conduct must not be of such a nature as to impinge on the fairness of the proceedings.”

22. Coban (choice of interpreter) (Coban v. Spain, decisions 2003 and 2006) “La Cour observe que la participation d’un interprète, même non diplômé - le code de procédure pénale n’oblige pas à ce que l’interprète soit en possession d’un diplôme officiel - mais ayant un degré suffisant de fiabilité quant à la connaissance de la langue qu’il interprète rend valide l’interprétation du contenu des conversations dans une autre langue et ce, même s’il s’agit d’un résumé ou des extraits de la conversation.”

23. Cuscani (choice of interpreter) Cuscani v. the United Kingdom (2006) § 18 “The trial judge asked whether anyone in court who knew the applicant was fluent in both English and Italian and could provide interpretation for the applicant. The applicant's counsel, without consulting his client, pointed out that the applicant's brother was present, and the court agreed to make use of him, if need be.”

24. Cuscani (choice of interpreter) “The onus was thus on the judge to reassure himself that the absence of an interpreter at the hearing ... would not prejudice the applicant's full involvement in a matter of crucial importance for him. In the circumstances of the instant case, that requirement cannot be said to have been satisfied by leaving it to the applicant, and without the judge having consulted the latter, to invoke the untested language skills of his brother.”Cuscani § 38 contrast Berisha & Haljiti v. former Yugoslav Republic of Macedonia (decision 2007)

25. Husain / Hermi (limit to written translation) “...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) The Court has repeated this in judgments: Hermi v Italy (2006) and Baka v Romania (2009)

26. Hermi (assessment of need) Hermi Chamber judgment § 41: “... the Court observes that the notice was not translated into either of the two languages (Arabic and French) which the applicant claims to speak. It has not been established, either, 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 ...” Hermi Grand Chamber judgment § 90: “... 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. ...”

27. Hermi (assessment of need) Hermi v Italy (2006) • the issue of the defendant’s linguistic knowledge is vital and [the Court] must also examine the nature of the offence with which the defendant is charged and any communications addressed to him by the domestic authorities, in order to assess whether they are sufficiently complex to require a detailed knowledge of the language used in court

28. Hermi (proactive role of courts) Hermi v. Italy (2006)(referring to Cuscani v. the UK): “... while it is true that the conduct of the defence is essentially a matter between the defendant and his counsel, ... the ultimate guardians of the fairness of the proceedings – encompassing, among other aspects, the possible absence of translation or interpretation for a non-national defendant – are the domestic courts”

29. Panasenko (quality) Panasenko v Portugal (2008) § 63   « En l’espèce, la Cour admet qu’il ressort de l’enregistrement magnétique de l’audience, fourni par le requérant, que l’interprétation ne s’est pas déroulée sans problèmes.Le requérant a toutefois manqué de préciser dans quelle mesure les problèmes survenus auraient affecté le caractère équitable de la procédure. Il ressort en effet du dossier que le requérant a pu comprendre l’essentiel des débats et présenter sa version des faits. »

30. Amer (pre-trial proceedings) Amer v Turkey (2009) §§ 80 & 82 “ ... despite their importance for the domestic proceedings, neither statement makes any mention of an interpreter having been present when the applicant was questioned or the applicant having rejected that interpreter’s assistance, as claimed by the Government.” “The Court notes that the applicant is not a native speaker of the Turkish language. However, as submitted by the Government and as accepted by the applicant, he did speak some Turkish. Nevertheless, it is equally important to note the applicant’s undisputed claim that he was unable to read Turkish texts, especially if they were not typed ...”

31. Diallo (pre-trial proceedings) Diallo v Sweden (2010) • 24.  ... in order to safeguard against ill-treatment and to avoid incriminating statements made during police interrogation without access to a lawyer being used for a conviction, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police... (see, inter alia, Salduz v. Turkey ... 2008). • 25.  In the same line of reasoning, the assistance of an interpreter should be provided during the investigating stage unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right.

32. Katritsch (assessment of need) Katritsch v France (2010) • Russian national arrested 2000, had an interpreter at various stages but not at final Court of Appeal hearing in 2006. • Court agreed with Government that (a) he had not requested one, and (b) he spoke and understood French sufficiently by that time

33. Conclusions An applicant complaining before the Court of a language issue must normally have informed the domestic authorities of the problem at the appropriate time in the proceedings. He or she must substantiate the complaint. The authorities have a duty upstream to ensure that an accused is provided with language assistance if he or she so requests, unless they have evidence that the request is unjustified. Downstream, if the accused complains of a lack of quality or impartiality, etc., the authorities will usually be required at least to have examined the problem.

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