Transcript Slide 1
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
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
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regression: Art.8, Rec. 32
Material scope
Criminal proceedings
-No definition in Directive
-No autonomous concept of the EU
-ECtHR and ECJ
Suspects or accused persons
EAW proceedings
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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
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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
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Right to interpretation
Article 2
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
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Right to interpretation
Article 2
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
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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")
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Videoconferencing
Article 2(6)
- 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)
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Right to translation – Article 3
Within reasonable time
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)
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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)
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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
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• Replacement of the interpreter/translator
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)
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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?
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- Registration: Article 5(2); Rec. 31
- 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)
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Contact / Info:
European Commission
DG Justice, Procedural Criminal Law unit
Bärbel Heinkelmann
Procedural Rights Team Leader
Tel.: +32-2 29 98730
E-mail: [email protected]
Website:
http://ec.europa.eu/justice/criminal/criminal-rights/index_en.htm
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