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 which states "ensuring compatibility in rules applicable in the Member States as may be necessary to improve judicial co-operation in criminal matters.” 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.
Since the Government could not back a biding instrument covering domestic criminal proceedings, in April 2006, together with Cyprus, the Czech Republic, Ireland, Malta and Slovakia put forward a proposal for a nonbinding Political Resolution. 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. It was not possible to reach agreement on the proposal by unanimity. The UK along with five other EU member states was able to block the proposal. The proposal was, therefore, withdrawn in June 2007.
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.” On 8 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. The Commission has started with interpretation and translation, since this has been considered the least controversial right. However, the present proposal is part of a legislative package on procedural rights in criminal proceedings in the European Union.
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 such as the right to legal advice, legal aid, the right to information concerning fundamental procedural rights, the right to communicate with consular authorities and protection of vulnerable suspects and defendants who cannot understand proceedings.
The Commission expects this approach will overcome Member States opposition to the EU setting up common procedural standards in criminal proceedings. However, the Commission is using the same legal basis – Article 31(1) ( C )of the Treaty on European Union. 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 if the Lisbon Treaty comes into force.
The right to interpretation and translation in criminal proceedings in enshrined in the European Convention on Human Rights (ECHR). The Commission proposal is therefore duplicating the ECHR rules. Several Member States believe that the ECHR is sufficient and there is no need for the EU to act in this area.
The aim of the proposal is to approximate Member States' substantive procedural rules as regards interpretation and translation in criminal proceedings. Under the proposal all suspects in criminal proceedings who do not understand and 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.
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 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. Moreover, the suspect’s lawyer may require for further documents to be translated. This proposal might raise concerns among the Member States, including the UK, as they might be required to translate documents which are not presently translated.
Under the proposal Member States would be also required to provide training to judges, lawyers and other court staff in order to ensure that defendants can understand the proceedings as well as the quality of the interpretation and translation. The proposal would place further financial and administrative burden on Member States that presently do not offer training to legal interpreters and translators.
In the meantime, the Sweden Presidency has presented a Draft Resolution of the Council on a roadmap for strengthening procedural rights of suspected and accused persons in criminal proceedings. The Presidency considers the rights included in the road map as “fundamental procedural rights” therefore “action in respect of these rights should be given priority at this stage.”
The Draft Resolution invites the Commission 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.
Sweden has also put forward a Proposal for a Resolution of the Council and of the Governments of the Member States meeting within the Council fostering the implementation by Member States of the right to interpretation and to translation in criminal proceedings.
According to the EU Presidency, Member States should be provided with directions in order to effectively implement the rights contained in the Commission’s proposal. Hence, Member States would be required to 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, Member States should keep data/statistics as regards the number of persons questioned and charged with a criminal offence in respect of whom the services of an interpreter were requested and make such data available in order to facilitate the evaluation and monitoring of the provisions of Framework Decision.
