To recall, in 2004 the European Commission proposed a draft framework decision on certain procedural rights in criminal proceedings. The Commission has chosen as legal basis Article 31(1)(c) EU. Several Member States, including the UK, could not accept this legal basis as the proposal would also apply to purely internal cases where there is no judicial co-operation. In fact, those member states pointed out that there was no treaty basis for such interference into domestic affairs consequently they argued that the draft Framework Decision did not comply with the principle of subsidiarity. The UK Government could not back a biding instrument covering domestic criminal proceedings but it could have accepted a compromise package with a binding measure limited to cross border cases and a non binding resolution on practical measures to enhance compliance with the European Convention on Human Rights.
Member States were divided on whether the EU has competence to legislate on purely domestic proceedings or whether the legislation should only cover cross-border cases consequently it was not possible to reach agreement on the proposal by unanimity.
Taking into account that several EU Member States would not back a similar proposal including six procedural rights, the Commission has decided to adopt a “step-by-step approach.” Hence, last July, the European Commission adopted a proposal for a Council framework decision aiming at establishing common minimum standards as regards the right to interpretation and translation in criminal proceedings in the EU. However, the Commission is using the same legal basis – Article 31(1) (C) EU. The Government has accepted that this instrument will apply to purely internal situations.
It is necessary to strengthen the right of suspects to have documents translated and proceedings interpreted in criminal cases in all EU Member States but this draft framework decision is the first of several specific measures intended to replace the 2004 proposal. Consequently, other proposals will follow on other rights. The Commission’s proposals covering different rights would also apply to purely internal cases. The issue whether the EU has competence to act in domestic proceedings still exists. Moreover, it is important to mention that, presently, unanimity is required at the Council and the proposal goes through the consultation procedure however this would change to QMV and co-decision when the Lisbon Treaty comes into force.
The Commission expects this approach will overcome Member States opposition to the EU setting up common procedural standards in criminal proceedings. In fact, on 23 October, the Justice and Home Affairs Council reached a general approach on the proposal. The Council must consulted the European Parliament, before the proposal can be adopted.
The aim of the proposal is to approximate Member States' procedural rules as regards interpretation and translation in criminal proceedings. Under the proposal all suspects in criminal proceedings, including a person subject to an EAW, who do not understand or speak the language used, are entitled to interpretation and translation free of charge at all stages of criminal proceedings, including any appeals. Member States must also ensure that the right to interpretation is extended to legal advice given to the suspect. The costs of interpretation and translation are to be covered by the Member States.
The draft framework decision provides for the right to translation of essential documents of the proceedings such as the detention order depriving the person of his liberty, the indictment, documentary evidence and the judgment, so suspects can fully understand the case against them. No Member State can deny the right to interpretation and translation to a person facing a criminal charge who does not understand the language of the proceedings. However, the suspect’s lawyer may require for further documents to be translated. The UK might be required to translate documents which are not presently translated. The Government may set out in a statute which documents must be translated.
Moreover, the proposal would place further financial and administrative burden on Member States that, presently, do not offer training to legal interpreters and translators.
The Justice Ministers also agreed on a draft Resolution fostering the implementation by Member States of the right to interpretation and to translation in criminal proceedings. The Draft Resolution provides that Member States should put in place a system of accreditation/certification for interpreters and translators who can be employed in criminal proceedings. Such system should include a national registry of the accredited/certified interpreters and translators.
Moreover, the Justice and Home Affairs Council reached a general approach on a draft resolution, presented by the Swedish Presidency, on a roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings. According to Lord Bach the Government supports the road map as it believes there should be further action at EU level in the field of procedural safeguards. The Member States agreed, therefore, that the rights included in the road map are “fundamental procedural rights” therefore “action in respect of these rights should be given priority at this stage.”
The Commission is invited to present proposals concerning the following rights: Translation and Interpretation, Information on Rights and Information about the Charges, Legal Aid and Legal Advice, Communication with Relatives, Employers and Consular Authorities and Special Safeguards for Vulnerable Persons. Moreover, the Commission should also present a Green Paper on the Right to Review of the Grounds for Detention.
The Draft Resolution states that “The Council will examine all proposals presented in the context of the roadmap and pledges to deal with them as matters of priority.” It seems that all the member states have politically committed themselves to adopt such measures.
