Question 6
Has the directive brought important changes on the right to interpretation and translation in criminal proceedings in the legislation and practice of your Member State? what are the main aspects that could be improved, both at EU and national level?
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Austria
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The major improvement is that interpretation and translation must be provided free of charge. Even though the case law required interpretation for suspects unable to understand or to speak the language, the cost had to be borne be the suspect if convicted. Moreover, there were no provisions as regards the translation of essential documents.
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Belgium
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As already mentioned above, the Directive 2010/64 has not (yet) been transposed in the Belgian law.
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Bulgaria
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In my country the Directive has brought important changes on the right to interpretation and translation in criminal proceedings in the following aspects: a) enlarging the scope of documents that are to be translated; b) introducing certain requirements as to the quality of interpretation and translation and the qualification of interpreters and translators, although these requirements are not to be assessed as fully sufficient for the time being - please see the answer to Question 3 (a).
The critical notes as formulated in the answer to Question 3 (a) manifest that quality is the main issue. These notes outline the scope of the possible future improvements at the national level.
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Croatia
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These kind of rights and procedures defined by this concrete Directive, were already inherent part of the Croatian criminal procedure.
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Cyprus
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For the implementation of the Directive on the Right to Interpretation and Translation in Criminal Proceedings a new Law was enacted in 2014 (L. 18(I)/2014), which safeguards all rights provided by the EU Directive apart from cases I mentioned above. Even though some of these rights were provided in other national legislation (e.g. communication with a lawyer in a language the person understands), the enactment of the Law 18(I)/2014 safeguarded the rights regarding interpretation and translation, providing better protection of the right to a fair trial.
What could be improved at national level is the way the right to challenge the decision of the competent authority is exercised. (See answer in Question 2(d)). According to the Law the suspect or the accused can make an oral complain to the competent authority and the competent authority decides on the objection, recording in the minutes of the procedure both the oral objection and its own reasoned decision on the objection. There must be an amendment of the law so that the reasoned decision of the competent authority is made subject to judicial review.
Also see my suggestions in my answer to 2(f) and 3(b)(c).
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Czech Republic
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The new implementing legislation has brought rather slight changes into the system. The implementing legislation has newly specifically enacted:
- The interpretation of the communication between the suspect and accused and the defence lawyer, though the wording of the implementing legislation is in my view not in full compliance with the Directive; the interpretation of the respective provision of the Directive should be clarified at the EU level;
- The right to translation, at least oral, of other documents than those which are enumerated as documents that need to be translated obligatorily; the implementing provision is, however, rather vague and leaves a broad discretion to the authorities;
- It has been specified that all interpretation and translation rights belong not just to the accused but also to the suspect.
New act on interpreters should in my opinion set up a system with elaborated criteria for registration of interpreters, quality checks and appropriate sanction mechanism.
Challenging of the quality of interpretation, including legal remedies, is not specifically enacted in the national legislation.
The link to the establishment of a system of audio recording of questionings or hearings to prove the quality of interpretation, if contested, should be also explored.
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Estonia
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The implementation of the directive brought some important changes, esp
a) the right to interpretation for meetings with counsel;
b) the right to interpretation/translation of essential documents.
Much needs to be done to ensure the interpretation/translation is of sufficient quality.
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Finland
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At least according to Helsinki District Court – the largest court in Finland – the Directive has brought practical changes insofar as translations are concerned. Nowadays both the indictment and the judgment are usually translated especially if requested, whereas earlier the practice varied.
We would like to see stricter legislation on what documents would be deemed as necessary to translate, since now especially at the pre-trial investigation stage it is left totally to the discretion of the head of investigation and no effective remedy exists to challenge decision.
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France
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The main change is the right to interpretation during interviews with the lawyer.
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Germany
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Greece
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With the implementation of Law 4236/2014, which incorporated the directive, the right to interpretation and translation on the rights of the accused was strengthened. At national level, there should be more punctual and better information of the accused about the charge and the material gathered by the authorities and the presence of an interpreter during communications with a counsel should be facilitated.
Also, the defendants should be enabled to give evidence, at least in the preliminary proceedings, in writing, in a language they understand, to ensure that they understand the content of their testimony. Presumably, it would be advisable to work with the respective embassies, in order to enrich the registers of interpreters and translators. Moreover, strict criteria, possibly even exams for someone's entrance in the registers, should be set.
As a further improvement of the proceedings, I would suggest the establishment of independent translation centers (with EU funding as well), in order to recruit translators for languages not particularly well known, especially in view of the great immigration problem that our country is facing. Given the large numbers of immigrants crossing the boarders daily, the possibility of them committing various offences is high.
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Hungary
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No, such rights and procedures were already inherent part of the Hungarian criminal procedure.
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Ireland
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Perhaps because of the historical position regarding the use of the Irish language in Courts and other official fora there was a greater understanding on the part of the judiciary of the importance of according translation and interpretation rights. This was particularly emphasised also for instance in the directive on the European Arrest Warrant. As stated even prior to the current directive there was an understanding of the importance of translation.
The concern is that this is being paid “ lip service” only and that the translation provided is the bare minimum both in terms of oral translation only and in terms of choice of translator and quality of translator.
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Italy
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Yes, especially in terms of written translation. The quality of interpreters and translators must be improved by a previous selection and training.
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Latvia
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The law has been supplemented with the right to an interpreter in situations when the person does not have the knowledge of the official language, so the person may use the language he or she has knowledge of also during the meeting with the defence counsel, free of charge. The assistance of an interpreter is ensured by the person directing the proceedings, in the following cases:
- to prepare for the interrogation within the pre-trial proceedings or for the adjudication at a court hearing;
- to draw up a written complaint regarding the conduct of an official who handles the criminal proceedings or regarding amending or revocation of an adjudication and application of a procedural compulsory measure;
- to draw up a document necessary for the adjudication of the case under written procedure;
- to draw up an appellate or cassation complaint.
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Lithuania
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The directive did not bring any important changes on the right to interpretation and translation in criminal proceedings in Lithuania. To my opinion, the obligatory provisions should be incorporated in the directive in regard of providing the suspect and accused with the interpretation while he/she is communicating/consulting with the legal council in custody, remand prison, prison, at the police station and the court where the communication is related to the ongoing pre-trial investigation and/or court hearing. In regard of ensuring the quality of the interpretation/translation where independent translators/interpreters with special education and preparation only could render such services the requirement of the establishment of special register should be indicated as obligatory in the directive.
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Luxembourg
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Definitely not, as it is not implemented
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Malta
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No major changes
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Poland
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Regulations of the EU directive 2010/64 implemented in Polish criminal proceedings created a possibility to improve and strengthen a position of suspects or accused persons in the context of their right to defence and the right to a fair trial. Implemented regulations have positive impact on the practice (there is a greater awareness of officials of investigation and criminal justice bodies as well as other figures of criminal proceedings, especially suspects and accused persons, that there exists the right to free assistance of interpreters or translators and what are possible consequences of infringement of this right). In Polish doctrine it is emphasized another aspect of the right to interpretation or translation – the asymmetry between positions of suspects (accused persons) and injured persons (victims) in criminal proceedings in the area of the assistance of interpreters or translators. The general postulate is that suspects (accused persons) and injured persons (victims) should have the same guarantees in criminal proceedings - the equal right to access to free assistance of an interpreter or a translator in a criminal case (see e.g.: B. Zygmont, Prawo do korzystania z bezpłatnej pomocy tłumacza w postępowaniu karnym w świetle standardów europejskich, ‘Państwo i Prawo’ no. 7, 2004, p. 87; M. Olesiuk-Okomska, Wpływ regulacji Unii Europejskiej na udział tłumacza w polskiej procedurze karnej [in:] I. Sepioło-Jankowska (ed.), Reforma prawa karnego, Warszawa 2014, pp. 514 – 516).
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Portugal
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No in which concerns Portuguese legislation which already apply the main aspects of this new directive.
No either in which concerns the practice, since this directive doesn’t go as far as it should go, so that to assure a professional interpretation and translation.
The main aspects that should be improved are:
1. Both interpreters and translators should have legal qualifications;
2. The States should promote and maintain a Register of Certified Legal Translators and Interpreters.
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Romania
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Slovakia
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The important changes were in the translation of the relevant documents in the criminal proceedings. The interpretation was insured also before the transposition of the Directive. The lack in the regulation is maybe the interpretation of the consultation between the defence counsel and the accused person e.g. in the jail.
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Slovenia
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Yes. The directive has brought changes on the right to interpretation although Slovenian procedural law had also before the enactement of the directive in 2014, quite extensive right to interpretation and translation.
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Spain
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The directive has brought about important changes: the right to translation. Before the directive, Spanish system only recognized the right to interpretation. However, in practice, there are lack of sufficient number of interpreters and translators and lack of enforceability of translation as regards of important documents of the procedure.
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Sweden
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The Directive has been implemented into Swedish law partly by application of existing law, and partly by legislative amendments. The Amendments has entered into legal force 1 October 2013.
There is a general awareness of the right to interpretation at every stage of the Swedish criminal proceedings and within all of the relevant authorities. However, a tendency is that certain obligations that can be derived from the Directive have been passed on to the lawyer. Improvements could be made, especially concerning the right to translation.
In order to ensure a high quality of the interpretation and translation services it is important to increase the number of qualified interpreters and translators.
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The Netherlands
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The implementation of the Directive partly regarded a codification of an already existing practice, of which the right to translation of documents and the providing of the translated summons catch the eye.
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UK
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England and Wales
The provision of interpretation and translation services at the police station and at trial was overhauled in 1998 in England and Wales following reforms introduced by the then Lord Chancellor’s Department. However, the changes introduced were not formalised as rules of procedure. The implementation of the Directive has, as discussed above, introduced rules of practice and procedure which provide a far greater degree of protection for suspects and defendants who do not speak or understand English.
The Codes of Practice are more prescriptive than the Crim PR in identifying which categories of documents should be translated. The Crim PR permit far greater discretion. Decisions as to what documents are to be translated as essential to the understanding of the case are a matter for the judge. It is difficult to envisage circumstances where there could be a greater degree of prescription in the Crim PR, as no two cases at trial are the same.
The difficulty, however, is that the Directive has been implemented by way of amendment to the Codes of Practice issued under the Police and Criminal Evidence Act 1984 rather than by legislation. The Codes of Practice are not statutory instruments and the Notes for Guidance which assist in clarifying some of the amendments brought about by implementation of the Directive have an even lesser status. Failure to comply with any provision of a Code does not of itself render the individual concerned liable to criminal or civil proceedings. [PACE 1984, s.67(10)] Remedies for breaches of the Codes of Practice lie by way of complaint to the Independent Police Complaints Commission and, more importantly, may result in the inadmissibility of evidence obtained in breach of the Code in subsequent criminal proceedings.
Similarly, breaches of the Crim PR (for example, where the Crown Prosecution Service fail to translate essential documents in its case against the defendant in good time before trial) by parties to the proceedings can only be dealt with by staying the case and an abuse of process (highly unlikely); excluding the untranslated evidence; adjourning the trial; or exceptionally, making an order for wasted costs against the defaulting party.
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Scotland
Interpreting services were already provided to the accused in Scotland for a number of years prior to the directive. The directive has changed the provision of translated documents for accused persons.
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Northern Ireland
Translation costs come directly out of laa budget, there was no provision to increase the budget as a result of this increased burden, massive cuts to laa budget are ongoing justified by the claim that the cost of laa is too high
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