(b) how the decision is made on what other documents are essential? who takes that decision? who can apply for such a decision? whether such decisions include documents relating to a right to appeal?
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Austria
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The decision on other essential documents to be translated is made on request of the suspect (or the legal counsel). The decision is made by the police or the prosecutor or the court, depending on the stage of the proceedings.
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Belgium
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(see point answer to point a)
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Bulgaria
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The decision on whether the translation of other documents is essential (“for the exercise of the right to defence” as the Bulgarian legal rule puts it) is made by the organs of pre-trial investigation or by the courts. They make an assessment of their own as to what is necessary for “the exercise of the right to defence”. The decision to have the documents translated either is made ex officio or upon an explicit request in writing by the accused person or her/his counsel for the defence. Documents relating to a right to appeal may be included in the decision and this is a common practice.
During the discussions on how the requirements of the Directive were to be transposed, an idea was put forward which was very useful in my view. It was proposed that the explicit requests in writing of the accused persons or their counsel(s) for the defence to have some documents translated should imperatively bind the deciding bodies because these documents were essential per se (e. g. documents relating to the right to appeal, various pieces of written evidence, etc.). In other words, the idea was to restrict the power of the deciding bodies to make an assessment of their own in all cases. The idea was not accepted and now we are in a situation where practically all documents relating to the case may be translated but only upon the discretion of the organs of pre-trial investigation or the courts to decide whether the documents are essential or not.
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Croatia
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As it is mentioned before, the following documents have to be translated to the language they understood: instruction on legal remedy, arrest warrant, indictment, private sue, avocation, statement of charges and judgment, decision on ordinary and extraordinary remedies.
If it is necessary, the competent court can decide to translate every evidence which is necessary to accused or suspect person for using his procedural right on defence.
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Cyprus
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According to the Law that provides for the Interpretation and Translation during the Criminal Proceedings (L. 18(I)/2014), the competent authority, either ex officio either following a justified submitted request by the suspect or the accused or the lawyer of the suspect or accused person makes a decision on the documents that are essential. (Article 5(2)(β))
Documents relating to a right of appeal are included
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Czech Republic
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See the previous answer to understand that the Czech legislation makes a difference between documents that needs to be obligatorily translated as set in Section 28(2) CCP and other documents, whose translation may be requested as set in Section 28(4) CCP.
In the latter case the competent law enforcement authority makes the decision. Section 28(4) CCP stipulates as a benchmark “if it is necessary for the guarantee of the fair trial, in particular the proper exercise of the defence right, in the extent determined by a law enforcement authority, which is completely necessary for the acquaintance of the accused (note: this right belongs also to a suspect according to Section 28(5) CCP) with the facts he is laid guilty of”. Any document may fall within this category, there is no limitation to certain types only.
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Estonia
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According to § 10(6) of CCP if a suspect or accused is not proficient in the Estonian language, he or she or his or her counsel may submit a reasoned application for translating a document which is significant from the point of view of understanding the content of the suspicion or charges in the criminal matter or for ensuring the fairness of the proceedings into his or her native tongue or into another language in which he or she is proficient. If the body conducting the proceedings finds that the application for translating the documents is not justified, such body shall formalise the refusal by a ruling.
The decision is taken by the body conducting the proceedings (police, prosecutor, or judge). The scope of documents subject to request for translation is broadly defined, and with this is mind, there are no further regulations as to how the authorities shall determine whether the application is justified or not.
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Finland
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At the pre-trial investigation stage the head of investigation makes the decision and the suspect/his/her legal counsel can apply it for. One can lodge an administrative complaint to the chief of police or to the prosecutor against such a decision if one has been assigned to the case. However, this is not an effective remedy, since in the administrative complaint the person deciding it only considers whether the head of investigation has acted in accordance with the law. Since there is a wide discretion on what documents are necessary, a complaint is usually pointless to make.
During the court proceedings stage the court makes the decision on what documents are considered essential. We refer to what has been stated above; in theory one could ask for a procedural decision on the right to a translation but there are no specific provisions in law regarding this. During appellate proceedings one can refer to the right to a fair trial in order to get documents translated.
Especially if the defendant is in court without a counsel, written instructions on the right to appeal are in practice always given in a language he/she understands.
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France
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See above.
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Germany
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Greece
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Under Article 236A par.1 of the Greek Code of Criminal Procedures, as replaced by Law 4236/2014 and practice defendants or their lawyers may submit a reasoned request for the designation of documents or passages of documents as essential. The competent Council takes the decision. Yes, such decisions include documents relating to a right of appeal.
In practice the investigator usually takes the decision. The application could be submitted either by the defendant or the defence counsel at every stage.
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Hungary
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Only the competent authority may make a decision on the translation of any other documents. Even the suspect/accused and the legal counsel may apply for such a decision.
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Ireland
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The police authorities will never volunteer translated documents to a suspect. Courts may direct the Director of Public Prosecutions to provide translations of documents in a particular case. Where such an application is made it would cover the statements of evidence and the charge. In many cases the disclosed materials are voluminous and it would be exceptional to get a Court to agree to provide translation of materials being disclosed by the prosecution but which were not intended to form part of the prosecution case.
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Italy
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A decision of liability, an arrest warrant or any other decision depriving the liberty must be translated.
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Latvia
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All procedural document are translated, the translation can be provided in written or orally, depending on situation.
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Lithuania
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The above-mentioned documents (a) must be translated and served to the suspect and the accused. The essential documents, according to the Lithuanian law, are the documents indicated in the CPC.
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Luxembourg
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The translation of “important documents” is guaranteed.
Sometime the lawyer asks for the translation of the whole file.
In this case in order to reduce the costs the public prosecutor asks the lawyer to indicate the important documents he wants to have translated.
The lawyer indicates the documents, which he considers important, and in nearly all the cases these documents are translated on instruction of the public prosecutor.
This system works quite efficiently and I have no personal negative experience, or heard negative experience from colleagues.
It also belongs to the lawyer to characterise the documents which are really important for the case.
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Malta
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Decision normally made by the Judge or Magistrate, with or without submissions from the prosecution or defence.
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Poland
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In Polish Code of Criminal Proceedings there is no legal term ‘essential documents’ but in the scope of this term are situated such documents as: every decision on deprivation of liberty of a certain person, decisions on charges, indictments and court judgments. Such documents seem to be essential because of its nature. There is no provision including a procedure on making a decision which document in criminal proceedings is considerable as an essential one. In practice such decisions – if they’re made - include for instance police reports, prosecution or court minutes and other documents relating to the right to appeal. As well as there is no provision clearly indicating an appropriate subject deciding which documents are essential. In practice such subjects are officials of bodies responsible for investigation or criminal proceedings in its particular stages: police officers, prosecutors, judges.
Polish criminal proceedings regulations don’t point out subjects entitled to apply for a decision showing that a certain document is essential for criminal proceedings. In practice - in accordance with other proper regulations of criminal proceedings – there are no obstacles to agree that a suspect or an accused (also his or her lawyer) may apply to a proper authority for such decision.
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Portugal
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The judicial authority takes the decision about what documents are essential and it is possible to apply for that decision.
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Romania
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Slovakia
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According to Sec 28 para 5 CCP, upon the request of the accused or even without the request, the authority in charge of the proceeding may decide that other documents be translated (to the extent determined by that body) should it be necessary to safeguard the fairness of the proceedings and the effective exercise of the rights of the defence. The accused may waive this right.
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Slovenia
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The competent authorities (police; judge) shall, in any given case, decide whether any other document is essential. Suspected or accused persons or their legal counsel may submit a reasoned request to that effect.
How this right is safeguarded in practice is unclear since the right has been implemented in the Slovene law with the amendement to the Law on Criminal Procedure from November 21, 2014 and became valid on December 6, 2015.
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Spain
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The decision is taken by the authority that runs the relevant procedural act (police, public prosecutor or judge). The documents related to the right of appeal (judgments and sentences) are translated.
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Sweden
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In principle, the investigative authorities and the courts shall voluntarily examine whether a translation is necessary. In practice, an examination is made only upon request from the suspected person or his or her lawyer.
A translation or partial translation is generally not considered necessary if a lawyer is appointed to the suspect.
During an ongoing investigation, and if the relevant material is held by the investigative authority, it is the leader of the investigation who decides whether a translation shall be made. If the material is held by the court, the decision is made by a judge. A court decision contains information on the right to appeal.
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The Netherlands
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The legislative framework confirms that the suspect is allowed to have wholly or partly translated in writ-ing in a language he has a thorough command of, all documents he is allowed to take note of and which he deems necessary for his defence. This request must be submitted in writing and must describe which specific procedural documents or parts thereof relate to this request. The request must be duly rea-soned, which reasons must in particular go into the question whether in the given case a written transla-tion of the relevant document or relevant passage is deemed necessary for conducting a defence and the assistance of an interpreter who can orally translate the relevant documents or passages does not suffice (Explanatory Memorandum, Parliamentary Papers II 2011/12, 33355, 3, p. 15).
Depending on the stage of the proceedings, translations will be requested from the public prosecutor or the court (article 32a paragraph 2 NCCP). If, during the preliminary investigation, the public prosecutor denies the request for translation of procedural documents, the suspect or his counsel can lodge a notice of objection with the examining judge (article 32a paragraph 3). In case the investigation in court has already started, the court is authorised to take a decision regarding the question whether certain proce-dural documents have to be translated for the suspect. There is no possibility of raising objections against a negative decision.
However, if a (repeated) request in appeal is denied by the Court of Appeal at the trial, this is a decision that can be submitted in appeal to the court in cassation.
In summary
>there is a right/possibility to request translated copies of the suspicion arisen, of decisions pertaining to the deprivation of liberty as well as the sentence.
>the court or the public prosecutor decides - on the basis of a duly reasoned request by the suspect - whether they concern documents of which translation is necessary for the defence.
>it is possible to raise objections before the examining judge against the decision of the public prosecu-tor
>It is not possible to raise objections against the decision of the trial judge - however, the defence is free to repeat the request in appeal, after which assessment in cassation is possible.
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UK
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England and Wales
In the police station, the decision as to what other essential documents are to be translated is made by the custody officer. There is nothing to prevent a suspect or a legal representative asking for documents other than those identified in Annex M to be translated. There is no ‘right of appeal’ against the decision of a custody officer to refuse to arrange for the translation of documents which the suspect or his/her legal representative in a formal sense, although the suspect can ask for the ‘Duty Inspector’ to attend and review the decision of the custody officer. Whilst Duty Inspectors are responsible for all those in custody, their attendance at a place of detention (whether a police station or some other authorised site) is not guaranteed. Often Duty Inspectors will have responsibility for detainees in a number of police stations across a wide geographical area.
In criminal proceedings before a Magistrates’ Court or Crown Court, on the application of the defendant or on its own initiative, the court may require a written translation to be provided for the defendant of any document or part of a document, unless the translation of that document, or part, is not needed to explain the case against the defendant, or the defendant agrees to do without and the court is satisfied that the agreement is clear and voluntary and that the defendant has had legal advice or otherwise understands the consequences. It is clear from this part of the Crim PR that the trial judge has a wide discretion as to what documents are translated for the defendant. It is only where a document is not needed to explain the case against the defendant that translation is not required. The term document is not confined to documentary exhibits: it incorporates written witness statements which are provided to the defendant as part of prosecution disclosure in advance of the trial.
This provision in the Crim PR is supported by a similar safeguard in the National Agreement which provides that the right to an interpreter applies not only to all oral statements made at trial but also documentary material. While all material need not be translated the agreement requires the translation of “documents or statements necessary for him to understand the proceedings and to have a fair trial.”
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Scotland
The Criminal Justice Partners have collectively agreed what they consider to be “essential documents”; this is reflected in the 2014 Regulations, and discussed above. However, the court may determine that other documents may also be considered essential to the fairness of proceeding and consequently direct the Crown or the court service to provide translations of additional documents to the accused. The decision to classify a document as “essential” may be taken by the Court either on the application of the accused person, or of its own accord (2014 Regulations, Reg 10). The 2014 Regulations do not impose any restriction on the categories of documents which might be deemed “essential”; they define “essential” as “essential for the purposes of safeguarding [the] fairness [of court proceedings]”. This definition is sufficiently broad to encompass, in an appropriate case, documents relating to a right to appeal. Whether or not a document is “essential” within the meaning of the 2014 Regulations is a matter for the discretion of the court.
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Northern Ireland
Defence team in conjunction with defendant
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