EULITA Conference, Antwerp

1. EULITA Conference, Antwerp “European Court of Human Rights case-law on the right to language assistance in criminal proceedings” James Brannan European Court of Human Rights 27 November 2009

2. European Court of Human Rights • Set up in 1959 in Strasbourg by the Council of Europe – now 47 States, including 22 from Central and Eastern Europe • Major reform in 1998 when single Court created in new building (previously Commission + Court) • ECtHR gives almost 30 judgments per week, in addition to admissibility and other decisions • More important cases go to the Grand Chamber (referral or relinquishment)

3. 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

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

5. 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.

6. American Convention on Human Rights 1969 (Article 8) "2. ... During the proceedings, every person is entitled, with full equality, to the following minimum guarantees: (a) the right of the accused to be assisted without charge by a translator or interpreter, if he does not understand or does not speak the language of thetribunal or court;"

7. ICC Rome Statute (1998) Art. 67 Rights of the accused § 1. (a) To be informed promptly and in detail of the nature, cause and content of the charge, in a language which the accused fully understands and speaks; ... (f) To have, free of any cost, the assistance of a competent interpreter and such translations as are necessary to meet the requirements of fairness, if any of the proceedings of or documents presented to the Court are not in a language which the accused fully understands and speaks;

8. ICC case-law (Katanga, 2008) 61. ... An accused fully understands and speaks a language when he or she is completely fluent in the language in ordinary, nontechnical conversation; it is not required that he or she has an understanding as if he or she were trained as a lawyer or judicial officer. If there is any doubt as to whether the person fully understands and speaks the language of the Court, the language being requested by the person should be accommodated. ... 62. In conclusion, the Appeals Chamber considers that the standard applicable under the Statute is high - higher, for example, than that applicable under the European Convention on Human Rights and the ICCPR.

9. Preamble § 8 - The right to interpretation and translation for those who do not understand the language of the proceedings are enshrined in Articles 5 and 6 of the ECHR, as interpreted by the case law of the European Court of Human Rights. The provisions of this Framework Decision facilitate the application of those rights in practice. § 9 - The provisions of this Framework Decision should ensure that the rights of the suspect who does not speak and understand the language of the proceedings to understand the accusations brought against him and to understand the proceedings in order to be able to exercise his rights are protected by providing free and accurate linguistic assistance. This assistance should be extended, if necessary, to relations between the suspect and his defence counsel. Proposed Council Framework Decision on the right to interpretation and translation in criminal proceedings

10. Main issues A. Level of provision • 1) What is the extent of the authorities’ duty? • 2) When may language assistance be refused? • 3) Should such assistance be free of charge? B. Quality issues • 1) Choice of translator/interpreter (language skills and status) • 2) Quality control • 3) Impartiality and independence

11. A1) What is the extent of the authorities’ duty? (Article 5) 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.”

12. A1) What is the extent of the authorities’ duty? (Article 6) 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 ...”

13. A1) What is the extent of the authorities’ duty? (Article 6) Written material covered, see 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.”

14. A1) What is the extent of the authorities’ duty? (Article 6) Kamasinski “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.”

15. A1) What is the extent of the authorities’ duty? (Article 6) Interpreting vs. 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)

16. A2) When may language assistance be refused? When the authorities can prove that it is not necessary “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.” (Brozicek v. Italy (1989) § 41)

17. A2) When may language assistance be refused? 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. ...”

18. A3) Should such assistance be 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) Exceptions: Akbingöl v Germany (decision, 2004), Fedele v Germany (Commission decision, 1987)

19. B1) Choice of translator/interpreter (language skills and status) Kamasinski §73: “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.” see also Baka v Romania (2009) and Coban v. Spain (decisions 2003 & 2006)

20. B1) Choice of translator/interpreter (language skills and status) 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.”

21. B1) Choice of translator/interpreter (language skills and status) Cuscani § 38: “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.” contrast Berisha & Haljiti v. former Yugoslav Republic of Macedonia (decision 2007)

22. B1) Choice of translator/interpreter (language skills and status) Cuscani § 47: “The Court considers that it cannot speculate on the level of sentence which would have been imposed on the applicant had he benefited from the services of an interpreter at the sentencing hearing. It therefore disallows the applicant's claim for pecuniary damage.”

23. B2) Quality Control Kamasinski § 74 “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 .”

24. B2) Quality Control 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. »

25. B3) Impartiality and independence 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.”

26. 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. 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. If they refuse, the burden of proof will be on the Government in proceedings before the Court to show that such assistance was not essential. Downstream, if the accused complains of a lack of quality or impartiality, etc., the authorities will usually be required to have addressed the problem.

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