Lost in Translations – An Examination of the Legal & Practical Problems Associated with the Implementation (or Non-Implementation) of Directive 2010/64/EU – the right to interpretation and translation in criminal proceedings Estella Baker Professor of European Criminal Law and Justice

Contents Background Directive 2010/64/EU Enforcement & remedies for breach Implementation

Background 1: Initiatives at EU level European Commission, Procedural safeguards for suspects and defendants in criminal proceedings throughout the European Union COM(2003) 75 final; European Commission, Proposal for a Council framework decision on certain procedural rights in criminal proceedings throughout the European Union COM(2004) 328 final; Council of the European Union, The Hague Programme: Strengthening Freedom, Security & Justice in the European Union, section III (OJ 2005 C53/01) Council of the European Union, Proposal for a Council framework decision on certain procedural rights in criminal proceedings throughout the European Union, 10287/07, 5 June 2007

Background 2: the ECHR & fundamental rights ECHR, Article 6(3): “Everyone charged with a criminal offence has the following minimum rights: …. (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.” EU Charter of Fundamental rights, Articles 47 & 48 (proclaimed in 2000)

The breakthrough Resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings (OJ 2009 C295/01) The Stockholm Programme – An Open and Secure Europe Serving and Protecting Citizens (OJ 2010 C115/01) The Treaty of Lisbon: – Article 82 TFEU – Articles 6(1) & (3) TEU

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. Such rules shall take into account the differences between the legal traditions and systems of the Member States. They shall concern: …. (b) the rights of individuals in criminal procedure; …. Adoption of the minimum rules referred to in this paragraph shall not prevent Member States from maintaining or introducing a higher level of protection for individuals.”

Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings (OJ 2010 L 280/01)

The directive Legal basis = Article 82(2)(b) TFEU Protocol (No 21) & UK “opt in” to measures adopted under Area of Freedom, Security & Justice Title of TFEU UK opted in: see Recital (35) Entered into force: 15 November 2010 (Article 11) Deadline for implementation: 27 October 2013 (Article 9)

Subject matter & scope: Articles 1, 4 Interpretation/translation in criminal proceedings & proceedings for execution of EAW From time made aware suspected/accused until final determination of proceedings Court proceedings to appeal against administrative/alternative sanctions Costs to be met by Member State, regardless of outcome

Right to interpretation: Article 2 Right to interpretation “without delay” during criminal proceedings before investigative & judicial authorities: Article 2(1) Also for communication with legal counsel in direct connection with questioning, hearings, lodging of appeals etc.. “where necessary for the purpose of safeguarding the fairness of the proceedings”: Article 2(2)

Article 2 continued Includes “appropriate assistance for persons with hearing or speech impediments”: Article 2(3) Interpretation “shall be of a quality sufficient to safeguard the fairness of the proceedings, in particular by ensuring that suspected or accused persons have knowledge of the case against them and are able to exercise their right of defence.”: Article 2(8)

Right to translation: Article 3 Right, “within a reasonable period of time”, to written translation of all documents which are “essential” to ensure suspected/accused person is able to exercise the right of defence and to safeguard the fairness of the proceedings: Article 3(1) Explicitly includes “any decision depriving a person of his liberty, any charge or indictment, and any judgment”: Article 3(2)

Article 3 continued Competent authorities shall decide whether any other document is “essential”: Article 3(3) Oral translation or summary may be permitted provided it “does not prejudice the fairness of the proceedings”: Article 3(7) Right may be waived subject to legal advice/understanding of consequences & provided waiver “unequivocal and given voluntarily”: Article 3(8) Equivalent provision regarding quality to that in Article 2(8): Article 3(9)

Quality & confidentiality: Article 5 Member States must: – “take concrete measures” to ensure that interpretation and translation meet quality standard in Articles 2(8) & 3(9) – “endeavour to establish” a register/registers of independent interpreters/translators who meet the standard & make it/them publicly available: Article 5(2) – ensure interpreters/translators observe confidentiality when acting within the scope of the directive: Article 5(3)

Other provisions Training & record-keeping: Articles 6 & 7 Respect for fundamental rights – “non- regression”: Article 8 “Nothing in this directive shall be construed as limiting or derogating from any of the rights and procedural safeguards that are ensured under the ECHR, the Charter of Fundamental Rights of the European Union, other relevant provisions of international law or the law of any Member State which provides a higher level of protection.”

Enforcement & remedies for breach: national courts Direct effect: – clear & precise, unconditional; “vertical” only; – principles of “equivalence” & “effectiveness” Indirect effect/“harmonious interpretation” – when national courts apply domestic law they must interpret it, so far as possible, in the light of applicable EU law State liability in damages: – (i) provision intended to confer rights on individuals; (ii) “sufficiently serious” breach by the Member State; & (iii) causal connection between breach & damage suffered

Enforcement & CJEU Preliminary rulings: Article 267 TFEU NB Remember expedited procedure – persons in custody Enforcement proceedings: Articles TFEU

Implementation Case C-216/14 Criminal proceedings against Gavril Covaci, judgment of 15 October 2015 EU:C:2015:686 Implementation in the UK TRAINAC project findings

Thank you for listening!