Transcript Language Assistance in Criminal Proceedings

TRAFUT WORKSHOPS
“Language assistance in criminal
proceedings from the ECHR to the EU Directive”
James Brannan
European Court of Human Rights
Violations of the European Convention
on Human Rights
 Right to life (2)
 Prohibition of torture and
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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
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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)
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.
Article 6: Right to a fair trial
§ 1. In the
determination of
... any criminal
charge against
him, everyone is
entitled to a fair ...
hearing ... by [a]
... tribunal .. .
Article 6: Right to a fair trial
§ 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.
Article 6: Droit à un procès équitable
§ 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.
Was the European Convention on
Human Rights sufficient?
YES
 all member States were parties to the
Convention, which already provided for
minimum rights;
 few violations had been found;
 any further guarantees would involve
considerable cost and risk of abuse;
 “duplication”, with a risk of legal uncertainty
and confusion in the event of different
intepretations;
 subsidiarity (margin of appreciation);
 risk of regression ...
Was the European Convention on
Human Rights sufficient?
NO
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being a party to the Convention did not always provide a
sufficient degree of trust
not all member States were properly upholding existing
guarantees: need for consistency
existing guarantees were sometimes unclear (case-by-case
application): need for clarification
some States had better guarantees than others; hence a
need for “common minimum rules”: further development /
complementarity in relation to ECHR
EAW proceedings not covered by Article 6 ECHR
EU legislation was “realistically the best way of raising
standards”
more efficient enforcement in comparison with the
Strasbourg system and more flexible amendment
EU Directive on the right to interpretation and translation
in criminal proceedings
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
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.
Interpretation of rights in
ECtHR case-law
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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?
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.”
Article 5 (arrest and detention)
Violation of 5 § 1 in Čonka v. Belgium 2002
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“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.”
Article 5 (arrest and detention)
Violation of 5 § 4 (right to speedy review of
detention) in Shannon v. Latvia 2009
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“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.”
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)
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.”
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.”
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)
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
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 .”
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
Güngör (communication with counsel)
Güngör v Germany (2001)
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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.
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.”
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.”
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.”
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)
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)
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. ...”
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
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”
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. »
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 ...”
Delay in finding interpreter
“the main reason for the
protracted length of the
proceedings was the
trial court's inability to
secure interpretation
into Hebrew ... That
delay can be attributed
only to the State since
the trial judge remained
responsible for the
preparation and the
speedy conduct of the
trial”
Sandel v. FYROM (2010)
Violation of Article 6 § 1
Interpreter necessary at earliest stage
Diallo v. Sweden (2010)
 Article 6 § 3 (e) applicable to initial customs
interview
 The officer was entitled to conduct the
interview directly in the foreign language
 The Court drew a parallel with the Salduz
case-law
See also Şaman v. Turkey (2011)
Case study: Katritsch v France
Russian national arrested 2000, charged with organised
theft, forgery of documents - had an interpreter at
various pre-trial stages but not at final Court of Appeal
hearing in 2006. In the meantime his trial and an appeal
hearing had been held in his absence.
Complaint under Article 6 § 3 (e) – he alleged that he
had requested an interpreter but the Government
denied this. They argued that after 6 years his French
was sufficient: had a French wife, worked as a sports
trainer and when imprisoned a few months earlier the
prison register had a note that he spoke French.
Case study: Katritsch v France
 Should an interpreter have been called
automatically, in view of his nationality and
the procedural history, even if he did not
request one?
 Could it be assumed that his French was
sufficient?
 Should the complexity of the case be taken
into account?
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.
http://www.echr.coe.int/echr/
james.brannan
@echr.coe.int