Interpretation and translation rights in criminal proceedings

Background

11.1 This proposal for a Council Framework Decision aims to set common minimum standards with respect to the right to interpretation and translation in criminal proceedings throughout the European Union. The proposal is envisaged as the first step in a series of measures designed to replace the Commission’s 2004 proposal for a Council Framework Decision on certain procedural rights in criminal proceedings,[32] which was withdrawn in June 2007 after the Member States failed to reach an agreement. The Commission hopes that a step-by-step approach to procedural rights will be viewed as a more acceptable way to proceed; such an approach (according to the Commission) will also gradually contribute to enhancing mutual trust.

11.2 This proposal should, therefore, be considered as part of a comprehensive package of legislation which will seek to provide a minimum set of procedural rights in criminal proceedings in the European Union. Rights covered in the 2004 proposal were, besides the right to free interpretation and translation, the right to legal advice, the right to information about rights (Letter of Rights), the right to specific attention for vulnerable defendants, the right to communicate with consular authorities and the right to communicate with the family. For the first proposal, the Commission has decided to concentrate on the right to interpretation and translation as it was the least controversial right in the discussions of the 2004 proposal. The proposal is accompanied by a non-legislative measure in the form of a draft Council Resolution of the Presidency. This aims to improve standards in the EU Member States of interpretation and translation in the course of criminal proceedings. This proposal should also be considered together with a Presidency proposal for a “Roadmap on procedural rights”, which is reported in a further Chapter in this week’s Report.

11.3 The proposal is also subject to a COSAC (Conference of Community and European Affairs Committees of Parliaments of the European Union) subsidiarity check under the provisions of Protocol 2 on the Application of the Principles of Subsidiarity and Proportionality as attached to the Treaty of Lisbon (see Conclusions adopted by the XLI COSAC on 12 May 2009 in Prague) .

Previous scrutiny

11.4 We reported on the Commission’s previous proposal for a Framework Decision on procedural rights throughout the negotiations.[34] In our final Report[35] before the proposal was abandoned, we reported that the Council of Europe, which is responsible for ensuring the application of the European Convention of Human Rights (ECHR) in its signatory states, had concluded that the draft proposal did not contain “sufficient safeguards to ensure coherence and consistency with the ECHR”. We also reported the views of the Government in the form of an Explanatory Memorandum from the then Attorney General (Lord Goldsmith). Among other concerns the Attorney General had concluded that the legal base of Article 31(1)(c) EU was only appropriate for cross-border, as opposed to domestic, criminal cases and therefore could not be used for this proposal which covered both; and that certain provisions of the proposal were likely to create inconsistencies with the ECHR as interpreted by the European Court of Human Rights (ECtHR) and therefore legal uncertainty. We drew a similar conclusion, commenting that “[g]iven the pre-existing duty of Member States to comply with the ECHR, adoption of a conflicting Framework Decision will serve no purpose other than to create confusion”. Instead of a Framework Decision, we recommended the Council adopt a non-binding Resolution on procedural safeguards.

Current proposal

RECITALS

11.5 The first two recitals of this Framework Decision recall the establishment (following the Tampere Conclusions) of mutual recognition as the cornerstone for judicial cooperation in the EU and the adoption of that principle in the Hague Programme. The third and fourth recitals make the link between implementation of the principle of mutual recognition and the need for a mutual trust of each other’s criminal justice systems. The fifth recital states that accession to the ECHR has not always provided a sufficient degree of trust in the criminal justice systems of EU Member States. Recitals 6 and 7 state that the application of common standards within the EU “should lead to increased confidence in the criminal justice systems of all Member States which in turn should lead to more efficient judicial cooperation in a climate of mutual trust”. Subsequent recitals set out the importance of interpretation and translation rights “as enshrined in Articles 5 and 6 of the ECHR” and the Framework Decision’s intention to facilitate the application of those rights in practice. Addressing the subsidiarity threshold, recital 14 states “[s]ince the aim of achieving common minimum standards cannot be achieved by the Member States acting unilaterally and can only be achieved at Union level, the Council may adopt measures in accordance with the principle of subsidiarity”.

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Dr. Salvatore Ivan Italiano
Dr. Salvatore Ivan Italiano

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