Statewatch News Online: Note comparing the Council and Commission proposals on the right to interpretation and translation in criminal proceedings
28 March 2012
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Note comparing the Council and Commission proposals on the right to interpretation and translation in criminal proceedings
by Professor Steve Peers,
University of Essex 
1)
the basic scope of the two proposals is slightly different.
The Commission proposal applies where a person is informed that
he is a suspect, whereas the Council proposal applies where a
person is 'made aware that' he or she is 'suspected or accused
of having committed a criminal offence'. Both measures apply
until the conclusion of proceedings, but the Council version
further defines what this concept means. (Art. 1(2), both versions).
2) On the same point, the Council version has an exclusion from
its scope that does not appear in the Commission proposal (Art.
1(3), Council version):
'This Directive shall not apply to proceedings which may lead
to sanctions being imposed by an authority other than a criminal
court, as long as those proceedings are not pending before a
court having jurisdiction in criminal matters.'
3) the right to interpretation applies in the Commission proposal
to persons who cannot 'understand AND speak' the language, whereas
the Council version applies where a person cannot 'understand
OR speak' it. The Commission proposal requires this interpretation
'without delay' and refers also to the quality of interpretation,
whereas the Council version specifies which language the proceedings
are to be translated into. (Art. 2(1), first sentence).
The Commission proposal applies to 'necessary' meetings between
a suspect and his/her lawyer, whereas the Council version refers
to all such communications. It also provides that interpretation
'may' be offered in proceedings other than those listed. (Article
2(1), second sentence). The Council version contains an extra
proviso that 'This provision does not affect rules of national
law concerning the presence of a legal counsel during any stage
of the criminal proceedings.'
4) The Commission version contains an extra proviso that legal
advice must be interpreted (Art. 2(2), Commission version), although
arguably this is covered by the Council version's reference to
all communications between suspect and lawyer.
5) the reference to a procedure or verification of whether the
suspect understands the language of proceedings is worded slightly
differently (Art. 2(3)).
6) the Commission version refers to a 'challenge' of a refusal
to interpret, whereas the Council version refers to a 'review',
with the added proviso in the Council version that 'Such review
does not entail the obligation for Member States to provide for
a separate mechanism in which the sole ground for review is the
challenging of
such finding.' (Art. 2(4)).
7) Right of translation of documents: the Council version specifies
that the documents must be essential for the fairness of proceedings,
whereas the Commission version just refers to 'essential' documents;
the Council version again specifies the language to be translated
into while the Commission version again refers to the quality
of translation; the Council version specifies that the right
applies to 'at least the important passages of such documents',
and adds the proviso, 'provided that the person concerned has
the right of access to the documents concerned under national
law.' (Art 3(1)).
8) The Council version adds the words 'The competent authorities
shall decide which are the essential documents to be translated
under paragraph 1', but then also includes a variation on the
Commission definition of which documents are 'essential' (Art
3(2)). The Council again refers to translating possibly only
'passages' of the documents and drops the reference to translating
'documentary evidence' found in the Commission proposal.
9) as for the request to translate further documents (Art 3(3)),
the Council version adds the words 'which are necessary for the
effective exercise of the right of defence,' while the Commission
version refers also to written legal advice from the suspect's
lawyer.
10) the possibility of challenge or review of a negative decision
is slightly different (art 3(4)), cf the provisions on challenge
or review in the context of interpretation (see above).
11) the Commission version requires legal advice before the right
can be waived (Art 3(6), Council version Art 3(7)).
12) the Council version contains an extra restriction (Art 3(6),
Council version):
'6. Provided that this does not affect the fairness of the
proceedings, an oral translation or an oral summary of the documents
referred to in this Article may, where appropriate, be provided
instead of a written translation.'
13) the references to quality of interpretation and effectiveness
of interpretation (Art 5) are similar except they refer to different
issues (quality in the Council version, effectiveness in the
Commission version). The Commission version also refers to training
(Art 5(2)).
14) the Commission's version of the non-regression clause (Art
6) refers also to the EU Charter of Rights.
15) the deadline date is six months earlier in the Commission
proposal, with a requirement to refer to the EU measure in national
law and also to submit a correlation table (Art 7)
16) the Commission report comes six months earlier in its proposal
(Art 8) and includes a report on cost implications
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