Procedural Rights Challenges of implementation of the Directive 2010/64/EU of 20 October 2010 on the right to interpretation and translation in criminal proceedings 19 October 2012 Trafut Workshop 2012

2 Introduction 1)Legal basis: Art.82 TFEU 2)From Framework Decision to Directive 3)-Role of the Commission (infringement proceedings – Art.258 TFEU) 4)-Role of the ECJ (preliminary reference proceedings – Art.267 TFEU) 5)-Role of national courts 6)Terminology 7)-Ref. to ECHR and Charter: Rec. 5 and 33 8)-ECtHR jurisprudence 9)Minimum rules - higher level of protection – non regression: Art.8, Rec. 32

3 Material scope Criminal proceedings -No definition in Directive -No autonomous concept of the EU -ECtHR and ECJ Suspects or accused persons EAW proceedings

4 Temporal scope Start: -made aware by competent authorities of a MS -by official notification or otherwise No reference to formal procedural requirement under national law (summoning to interview, Court, notification of charges) End: Conclusion of the proceedings – res judicata Not: execution phase of the final judgment

5 Scope – Minor Offences Article 1(3) -Relatively minor & examples in Recital 16 -Large scale -Unreasonable to require that the competent authorities ensure that all the rights under the Directive should be respected -Other authority than a court having jurisdiction in criminal matters & Right to appeal -If case goes to court having jurisdiction in criminal matters, Directive applies

6 Shift of perspective: Right of suspect or accused person – interpretation not (only) for Court Person does not speak or understand the language Entirety of the proceedings: Investigation including police questioning and evidence gathering Proceedings before court and court hearings Right to interpretation Article 2

7 Without delay Recital 18: Certain period of time may elapse which is reasonable in the circumstances Languages No provisions in operative part – Recital 22: native language or other language the person speaks or understands No waiver possible Vulnerable persons Article 2(3) – hearing or speech impediments & Recital 27-wider: physical impediments

Right to interpretation Article 2(2) Communication with the legal counsel 2009 COM proposal: "During all necessary meetings" Directive: In direct connection with questioning/hearings or with the lodging of an appeal or other procedural applications Reference to the fairness of the proceedings MS initiative: During criminal proceedings before investigative and judicial authorities + possibly in other situations ("may be") 8

9 - Neither in COM proposal nor in MS initiative - Rather to be avoided - Safeguard of the fairness of proceedings - Recital 28: Reference to E-Justice Handbook on videoconferencing can be found on the E-Justice portal Courts data base is currently being developed and should be finalised in the end of 2013 (information on courts disposing of video conferencing equipment will be added at a later stage) Videoconferencing Article 2(6)

10 Rights of defence and safeguard of the fairness of the proceedings Rules need to take into account deadlines (e.g. for launching appeal) Rules on access to documents: -- national law -- Directive on the right to information – Article 7 (Access to materials of the case) Right to translation – Article 3 Within reasonable time

Right to translation – Article 3 Essential Documents Article 3(2):Decision depriving person of liberty – charge or indictment – judgement (list does not include "essential documentary evidence") Article 3(3): Decision by competent authorities proactive approach on what other documents are essential – transposition will need to take into account other types of documents – criteria to be provided Article 3(3): Reasoned request Reasoned decision to refuse? (link to right to challenge) 11

Remedies and Safeguards Procedure or mechanism: Article 2(4)+Rec. 21 e.g. protocol of questions or expert Right to challenge negative decision on need of interpretation and/or translation Articles 2(5), 3(5), Rec. 25 Reference to national law – no separate mechanism or complaint procedure But: reasonable chance to challenge a negative decision (principle of effectiveness) Complaint on quality of interpretation or translation: Article 2(5), 3(5), Rec. 26 Replacement of the interpreter/translator 12

Costs of interpretation and translation Article 4 Member States shall meet the costs irrespective of the outcome of proceedings ECtHR Jurisprudence (Luedicke, Belkacem and Koc v Germany) 13

The issue of Quality Articles 2(8) and 3(9) Rather wide margin of discretion for MS Complaint mechanism Articles 2(5), 3(5) What else? - Registration: Article 5(2); Rec confidentiality: Article 5(3) - Qualification - MS draft resolution - Training of interpreters and translators (Swedish draft resolution) – Training for judges, prosecutors, judicial staff (Article 6) - Accreditation/certification (Swedish draft resolution) - Codes of conducts and best practices (Swedish & MS draft resolution) 14

15 Contact / Info: European Commission DG Justice, Procedural Criminal Law unit Bärbel Heinkelmann Procedural Rights Team Leader Tel.: Website: