EXPLANATORY MEMORANDUM1.1.I

NTRODUCTION

This proposal for a Council Framework Decision aims to set common minimum standardsas regards the right to interpretation and translation in criminal proceedings throughout theEuropean Union. The proposal is envisaged as a first step in a series of measures designedto replace the Commission's 2004 proposal for a Council Framework Decision on certainprocedural rights in criminal proceedings throughout the European Union - COM(2004)328, 28.4.2004 - which is withdrawn after due notification to the Council and the EuropeanParliament. Agreement could not be reached on that proposal, despite 3 years' discussionsin the Council Working Group, and it was effectively abandoned in June 2007, after afruitless discussion in the Justice Council. Adopting a step-by-step approach is now seen asa generally acceptable way to proceed; it will also gradually help build confidence andcontribute to enhancing mutual trust. This proposal should therefore be considered as partof a comprehensive package of legislation which will seek to provide a minimum set ofprocedural rights in criminal proceedings in the European Union. Rights covered in the2004 proposal were, besides the right to free interpretation and translation, the right tolegal advice, the right to information about rights (Letter of Rights), the right to specificattention for vulnerable defendants, the right to communicate with consular authorities andthe right to communicate with the family. For this proposal, the Commission has decidedto concentrate on the right to interpretation and translation as it was the least controversialright in the discussions of the 2004 proposal and there was information and researchavailable on this right.This proposal seeks to improve the rights of suspects who do not understand and speak thelanguage of the proceedings. Having common minimum standards in relation to theserights should facilitate the application of the principle of mutual recognition.As regards the legal basis, the proposal is based on Article 31(1) of the Treaty on EuropeanUnion. Article 31(1)(c) envisages that the EU may develop "common action" so as toensure compatibility in rules where necessary to improve cooperation. For judicialcooperation, in particular mutual recognition, it is necessary to have mutual trust. A certaindegree of compatibility is necessary to improve mutual trust and hence, co-operation.The right to interpretation and translation, which stems from the European Convention onHuman Rights (ECHR), is fundamental for a person facing a criminal charge who does notunderstand the language of the proceedings so that the suspect knows the charges againsthim and understands the procedure. The suspect must be in a position to understand ofwhat he is accused. Translations should be provided of essential procedural documents. Inaccordance with the ECHR, interpretation and translation must be provided free of charge.Impact AssessmentThe proposal was subject to an Impact Assessment which is contained in documentSEC(2009) 915. The Impact Assessment was examined, and subsequently approved, by theImpact Assessment Board on 27 May 2009. The Board's recommendations and how thesewere accommodated can be found at paragraph 25 of the Impact Assessment(http://ec.europa.eu/governance/impact/practice_en.htm). The options set out were asfollows:

(a) Maintaining the status quo would entail no EU action. The current situation wherebyMember States are expected to comply with their ECHR obligations could be expected tocontinue as now with the perceived imbalance between prosecution and the accused whichhas hitherto hampered mutual recognition. This would have negligible economicconsequences.(b) Non-legislative measures such as recommendations would encourage exchangesbetween Member States and help to identify best practice. This option would lead to betterawareness of ECHR standards by disseminating and recommending practices which helpcompliance. It would not achieve further approximation of legal standards.(c) New instrument covering all rights along the lines of the 2004 proposal. Itsimplementation by Member States, monitoring by the Commission and ultimate recourseto the ECJ would help overcome differences in compliance with the ECHR and promotemutual trust. The economic impact would be twofold, first the cost of putting services inplace to ensure rights are respected, and second, the gain in reduced costs of appeals.(d) A measure restricted to cross-border cases would constitute a first step. It would needcareful consideration so that any potential issue of discrimination between categories ofsuspects involved in cross-border versus domestic proceedings is addressed appropriately.As with the previous option, the economic impact would be twofold, first the cost ofputting services in place to ensure rights are respected, and second, the gain in reducedcosts of appeals, but to a lesser extent than above since it is less ambitious in scope.(e) A step-by-step approach, beginning with measures on access to interpretation andtranslation, involving a new Framework Decision requiring Member States to provideminimum standards only for access to interpretation and translation is the favoured option.The economic impact would be twofold, first the cost of putting services in place to ensurerights are respected, and second, the gain in reduced costs of appeals.The Impact Assessment identified the combination of options (b) and (e) as the preferredapproach maximising synergies between legislative and non-legislative action. Thereforethis Framework Decision should be followed up by a document on best practice.2.6.B

ACKGROUND

Article 6 of the Treaty on European Union (TEU) provides that the Union shall respectfundamental rights, as guaranteed by the European Convention for the Protection ofHuman Rights and Fundamental Freedoms (ECHR) and as they result from theconstitutional traditions common to Member States. Moreover, in December 2000, theEuropean Parliament, the Council and Commission jointly signed and solemnlyproclaimed the Charter of Fundamental Rights of the European Union.The Presidency Conclusions of the Tampere European Council1stated that mutualrecognition should become the cornerstone of judicial cooperation, but makes the pointthat mutual recognition "...and the necessary approximation of legislation would facilitate[…] the judicial protection of individual rights"2.

The Commission Communication to the Council and the European Parliament of 26 July2000 on Mutual Recognition of Final Decisions in Criminal Matters3stated that “it musttherefore be ensured that the treatment of suspects and the rights of the defence would notonly not suffer from the implementation of the principle [of mutual recognition] but thatthe safeguards would even be improved through the process”.This was endorsed in the Programme of Measures to Implement the Principle of MutualRecognition of Decisions in Criminal Matters4("Programme of Measures"), adopted by theCouncil and the Commission. It pointed out that “mutual recognition is very muchdependent on a number of parameters which determine its effectiveness”.These parameters include mechanisms for safeguarding the rights of suspects (parameter 3)and the definition of common minimum standards necessary to facilitate application of theprinciple of mutual recognition (parameter 4). This proposal for a Framework Decisionrepresents an embodiment of the stated aim of enhancing the protection of individualrights.T

HE RIGHT TO TRANSLATION AND INTERPRETATION AS ESTABLISHED UNDER THE

ECHRArticle 5 ECHR – Right to liberty and security - stipulates that:"(1) Everyone has the right to liberty and security of person. No one shall be deprived ofhis liberty save in the following cases and in accordance with a procedure prescribed bylaw: (…)(f) the lawful arrest or detention of a person …with a view to …extradition.(2)Everyone who is arrested shall be informed promptly, in a language which heunderstands, of the reasons for his arrest and of any charge against him.”(…)(4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to takeproceedings by which the lawfulness of his detention shall be decided speedily by a courtand his release ordered if the detention is not lawful."And Article 6 – Right to a fair trial – stipulates that:"(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 thenature and cause of the accusation against him;(…)(e) to have the free assistance of an interpreter if he cannot understand or speak thelanguage used in court."

The Charter of Fundamental Rights of the European Union reflects these rights in itsArticles 6 and 47 to 50.12.The European Court of Human Rights (ECtHR) has held on Article 6 ECHR that theaccused has the right to interpretation free of charge, even in the event of his conviction,that he has a right to receive the documents setting out the charge in a language that heunderstands, that the interpretation must be sufficient to allow the person charged tounderstand the proceedings and that the interpreter must be competent. That the accusedhas the right to interpretation free of charge, even in the event of his conviction wasestablished inLuedicke, Belkacem and Ko§ v. Germany5. InKamasinski v. Austria6, it wasestablished that the interpretation provided should be of a high enough standard to enablethe defendant to have knowledge of the case against him and to defend himself. The rightapplies to documentary material and the pre-trial proceedings. The ECtHR held that thestandard of interpretation must be "adequate" and that details of the charge must be givento the person in a language that he understands (Brozicekv. Italy7).It is for the judicialauthorities to prove that the defendant speaks the language of the court adequately and notfor the defendant to prove he does not8. The interpreter must be competent and the judgemust safeguard the fairness of the proceedings (Cuscaniv. UK9).S

PECIFIC PROVISIONS

The proposal for a draft Framework Decision sets out basic obligations and builds on theECHR and the case-law of the ECtHR. The Reflection Forum on Multilingualism andInterpreter Training10produced a report with recommendations on the quality ofinterpretation and translation. This Report was the fruit of meetings of the ReflectionForum convened by the Commission's Directorate-General for Interpretation during 2008to identify whether there is a need for action and if so, what action could be taken. TheForum concluded that there was a need and set out Recommendations as to how toimprove the provision of competent and qualified interpreters in criminal proceedings. TheRecommendations included having a Curriculum in Legal Interpreting and a system ofaccreditation, certification and registration for legal interpreters.

28 November 1978, Series A N� 29.“46.The Court thus finds that the ordinary meaning of the term […] “free”in Article 6 para. 3(e) […] is confirmed by the object and purpose of Article 6. The Court concludes that theright protected by Article 6 para. 3(e) entails, for anyone who cannot speak or understand the language used incourt, the right to receive the free assistance of an interpreter, without subsequently having claimed back fromhim payment of the costs thereby incurred.”19 December 1989, A Series N� 168.19 December 1989, (10964/84) [1989] ECHR 23.“41[…] the Italian judicial authorities should have taken steps to comply with it so as to ensure observance ofthe requirements of Article 6 § 3 (a) (art. 6-3-a), unless they were in a position to establish that the applicant infact had sufficient knowledge of Italian to understand from the notification the purport of the letter notifyinghim of the charges brought against him. No such evidence appears from the documents in the file or thestatements of the witnesses heard on 23 April 1989. On this point there has therefore been a violation ofArticle 6 § 3 (a) (art. 6-3-a).”24 September 2002 - No.3277/96.http://ec.europa.eu/commission_barroso/orban/docs/FinalL_Reflection_Forum_Report_en.pdf

This is intended as an autonomous term, irrespective of the designation of such persons innational proceedings.15.Since the case-law of the ECtHR has clarified that persons being questioned in relation tooffences, whether or not formally charged, should be covered by Article 6 ECHR, personsarrested or detained in connection with a criminal charge also come within the ambit ofthis provision. These rights start to apply from the time when the person is informed thathe is suspected of having committed an offence (e.g. on arrest or when the suspectedperson is no longer free to leave police custody).The Article clarifies that the proposal also applies to European Arrest Warrant cases. It isan important point that European Arrest Warrant cases are covered since the FrameworkDecision concerning the European Arrest Warrant only addresses these rights in generalterms. In this respect, the proposal is a further development of Article 5 ECHR.Article 2 - The right to interpretation16.This Article lays down the basic principle that interpretation should be provided during theinvestigative and judicial phases of the proceedings, i.e. during police questioning, at trialand at any interim hearings or appeals. The right is also extended to legal advice given tothe suspect if his lawyer speaks a language that he does not understand.

Article 3 - The right to translation of essential documents17.The suspect has the right to translation of essential documents in order to safeguard thefairness of the proceedings. InKamasinski v. Austria11, the ECtHR stated that the right tointerpretation applied to "documentary material" and that the accused should havesufficient knowledge of the case against him to enable him to defend himself12. Theessential documents for the criminal proceedings should therefore include the charge sheetor indictment and any relevant documentary material such as key witness statementsneeded in order to understand "in detail, the nature and cause of the accusation againsthim" in accordance with Article 6(3)(a) of the ECHR. Translation should also be providedof any detention order or order depriving the person of his liberty and the judgment, whichis necessary for the person to exercise his right of appeal (ECHR Protocol 7, Article 2).In respect of proceedings for the execution of a European Arrest Warrant, the EuropeanArrest Warrant should be translated.

19 December 1989, A Series N� 168.“74. The right […]to the free assistance of an interpreter applies not only to oral statements made at the trialhearing but also to documentary material and the pre-trial proceedings. Paragraph 3 (e) (art. 6-3-e) signifiesthat a person "charged with a criminal offence" who cannot understand or speak the language used in court hasthe right to the free assistance of an interpreter for the translation or interpretation of all those documents orstatements in the proceedings instituted against him which it is necessary for him to understand or to haverendered into the court's language in order to have the benefit of a fair trial. […]However, paragraph 3 (e) (art.6-3-e) does not go so far as to require a written translation of all items of written evidence or officialdocuments in the procedure. The interpretation assistance provided should be such as to enable the defendantto have knowledge of the case against him and to defend himself, notably by being able to put before the courthis version of the events. In view of the need for the right guaranteed by paragraph 3 (e) (art. 6-3-e) to bepractical and effective, the obligation of the competent authorities is not limited to the appointment of aninterpreter but, if they are put on notice in the particular circumstances, may also extend to a degree ofsubsequent control over the adequacy of the interpretation provided (see the Artico judgment).”

THE COUNCIL OF THE EUROPEAN UNION,Having regard to the Treaty on European Union, and in particular Article 31(1)(c) thereof,Having regard to the proposal from the Commission,Having regard to the opinion of the European Parliament,Whereas:(1)The European Union has set itself the objective of maintaining and developing anarea of freedom, security and justice. According to the conclusions of the EuropeanCouncil in Tampere of 15 and 16 October 1999, and in particular point 33 thereof,the principle of mutual recognition should become the cornerstone of judicialcooperation in both civil and criminal matters within the European Union.On 29 November 2000 the Council, in accordance with the Tampere Conclusions,adopted a programme of measures to implement the principle of mutual recognitionin criminal matters15. The introduction to the programme of measures states thatmutual recognition is "designed to strengthen cooperation between Member Statesbut also to enhance the protection of individual rights".Implementation of the principle of mutual recognition of decisions in criminalmatters presupposes that Member States have trust in each other's criminal justicesystems. The extent of the mutual recognition exercise is very much dependent on anumber of parameters, which include "mechanisms for safeguarding the rights of[…] suspects"16and common minimum standards necessary to facilitate theapplication of the principle of mutual recognition.Mutual recognition can only operate effectively in a spirit of confidence, wherebynot only judicial authorities, but all actors in the criminal process see decisions of thejudicial authorities of other Member States as equivalent to their own, implying "notonly trust in the adequacy of one's partner's rules, but also trust that these rules arecorrectly applied"17.

Although all Member States are parties to the European Convention for theProtection of Human Rights and Fundamental Freedoms (ECHR), experience hasshown that this in itself does not always provide a sufficient degree of trust in thecriminal justice systems of other Member States.Article 31(1) of the Treaty on European Union provides for "ensuring compatibilityin rules applicable in the Member States as may be necessary to improve [judicial co-operation in criminal matters]". Common minimum standards should lead toincreased confidence in the criminal justice systems of all Member States which inturn should lead to more efficient judicial cooperation in a climate of mutual trust.Such common standards should be applied in the fields of interpretation andtranslation in criminal proceedings. In order to enhance the necessary confidenceamong Member States, this Framework Decision provides for basic commonstandards with regard to interpretation and translation in criminal proceedings in theEuropean Union which reflect the traditions of the Member States in applying therelevant provisions of the ECHR.The right to interpretation and translation for those who do not understand thelanguage of the proceedings are enshrined in Articles 5 and 6 of the ECHR, asinterpreted by the case law of the European Court of Human Rights. The provisionsof this Framework Decision facilitate the application of those rights in practice.The provisions of this Framework Decision should ensure that the rights of thesuspect who does not speak and understand the language of the proceedings tounderstand the accusations brought against him and to understand the proceedings inorder to be able to exercise his rights are protected by providing free and accuratelinguistic assistance. This assistance should be extended, if necessary, to relationsbetween the suspect and his defence counsel.Appropriate assistance should be provided also to suspects suffering from hearing orspeech impediments.The duty of care towards suspects unable to understand or follow the proceedingsunderpins a fair administration of justice. The prosecution, law enforcement andjudicial authorities should therefore ensure that suspects in a potentially weakposition are able to exercise effectively their rights. Those authorities should beaware of any potential vulnerability and take appropriate steps to ensure these rights.This should always be the case where a suspect is a minor or suffers from disabilitieswhich impair his active participation in proceedings.Member States should be under a duty to provide training to judges, lawyers andother relevant court personnel in order to ensure the quality of the interpretation andtranslation.This Framework Decision respects the fundamental rights and observes theprinciples recognised by the Charter of Fundamental Rights of the European Union.In particular, this Framework Decision seeks to promote the right to liberty, the rightto a fair trial and the rights of the defence.Since the aim of achieving common minimum standards cannot be achieved byMember States acting unilaterally and can only be achieved at Union level, the

Council may adopt measures in accordance with the principle of subsidiarity asreferred to in Article 2 of the Treaty on European Union and defined in Article 5 ofthe Treaty establishing the European Community. In accordance with the principle ofproportionality, as set out in the latter Article, this Framework Decision does not gobeyond what is necessary in order to achieve that objective,HAS ADOPTED THIS FRAMEWORK DECISION:Article 1Scope1.This Framework Decision lays down rules concerning the rights to interpretation andtranslation in criminal proceedings and proceedings for the execution of a EuropeanArrest Warrant.Those rights apply to any person from the time that person is informed by thecompetent authorities of a Member State that he is suspected of having committed acriminal offence until the conclusion of the proceedings(the “suspect”).Article 2The right to interpretation1.Member States shall ensure that a suspect who does not understand and speak thelanguage of the criminal proceedings concerned is provided with interpretation, inorder to safeguard the fairness of the criminal proceedings. Interpretation shall beprovided during those proceedings before investigative and judicial authorities,including during police questioning, during all necessary meetings between thesuspect and his lawyer, during all court hearings and during any necessary interimhearings.Member States shall ensure that, where necessary, legal advice received throughoutthe criminal proceedings is interpreted for the suspect.Member States shall ensure that a procedure is in place to ascertain whether thesuspect understands and speaks the language of the criminal proceedings.Member States shall ensure that there is a right of appeal against a decision findingthat there is no need for interpretation.The right to interpretation includes assistance of persons with hearing or speechimpediments.With regard to proceedings for the execution of a European Arrest Warrant, MemberStates shall ensure that any person subject to such proceedings who does notunderstand and speak the language of the proceedings shall be provided withinterpretation during those proceedings.

Article 3The right to translation of essential documents1.Member States shall ensure that a suspect who does not understand the language ofthe criminal proceedings concerned is provided with translations of all essentialdocuments in order to safeguard the fairness of the criminal proceedings.The essential documents to be translated shall include the detention order deprivingthe person of his liberty, the charge/indictment, essential documentary evidence andthe judgment.The suspect or his lawyer may submit a reasoned request for translation of furtherdocuments, including written legal advice from the suspect’s lawyer.Member States shall ensure that there is a right of appeal against a decision to refusetranslation of any documents referred to in paragraph 2.With regard to proceedings for the execution of a European Arrest Warrant, MemberStates shall ensure that any person subject to such proceedings who does notunderstand the language in which the European Arrest Warrant is drawn up, shall beprovided with a translation of the said document.Article 4Member States to meet the costs of interpretation and translationMember States shall cover the costs of interpretation and translation resulting from theapplication of Articles 2 and 3.Article 5Quality of the interpretation and translation1.2.Interpretation and translation shall be provided in such a way as to ensure that thesuspect is fully able to exercise his rights.Member States shall offer training to judges, lawyers and other relevant courtpersonnel in order to ensure the suspect’s ability to understand the proceedings.Article 6Non-regression clauseNothing in this Framework Decision shall be construed as limiting or derogating from any ofthe rights and procedural safeguards that may be ensured under the European Convention forthe Protection of Human Rights and Fundamental Freedoms or the laws of any Member Stateswhich provide a higher level of protection.

Article 7ImplementationMember States shall take the necessary measures to comply with the provisions of thisFramework Decision by …….. at the latest18.By the same date Member States shall transmit to the Council and to the Commission the textof the provisions transposing into their national law the obligations imposed on them underthis Framework Decision.Article 8ReportThe Commission shall, by ……….19, submit a report to the European Parliament and to theCouncil, assessing the extent to which the Member States have taken the necessary measuresin order to comply with this Framework Decision, accompanied, if necessary, by legislativeproposals.Article 9Entry into forceThis Framework Decision shall enter into force on the twentieth day following that of itspublication in theOfficial Journal of the European Union.Done at Brussels,

NTRODUCTION

ACKGROUND

HE RIGHT TO TRANSLATION AND INTERPRETATION AS ESTABLISHED UNDER THE

PECIFIC PROVISIONS

UBSIDIARITY PRINCIPLE

ROPORTIONALITY PRINCIPLE