What is the situation in your Member State – covering both national law and national practice - with respect to the right to interpretation regarding:
(a) communications between the suspect or accused and the competent authorities in the Member State? are there any points to raise in particular regarding:
i. the time of provision (e.g. "without delay")?
The Austrian Code of Criminal Procedure (StPO) provides in § 56(2) that “interpretation must be provided … in particular for hearings of evidence, which are attended by the suspect … If interpretation cannot be provided within due time at the place of the hearing, interpretation may be provided by way of technical means of sound and vision transmission.”
Interpretation is provided within due time. In practice, there are no problems as regards the time of provision, as the police and the courts have lists of interpreters with are available within short notice; however, the quality of the interpreters available is often questionable.
The Directive 2010/64 has not (yet) been transposed in the Belgian law. The reason appears to be that, as stated hereunder, the existing Belgian law and practice cover already most of the requirement of the Directive.
According article 31 of the Belgian law of 15 June 1935 concerning the use of the languages in judicial matters :
i). Any suspect, accused or victim may use the language of his/her choice for his/her declaration before the investigative and/or judicial authorities (this means freedom to use any language of the world, and thus not only to the 3 national languages of Belgium1, even if the person is of Belgian nationality or wants to speak an other language that the one of its nationality if (s)he is foreigner) ;
ii). if the investigative and/or judicial authorities do not understand the language chosen by the suspect, accused or victim, the concerned authority has the legal obligation since the very first interview, to request the assistance of a sworn translator to translate the declarations of the person in the language of the procedure;
iii). the costs of translation are entirely and definitively covered by the national treasury. This means that even is the person is sentenced as accused or loses as victim, he/she may never be sentenced to reimburse the costs of interpretation and translator fees.
NO point to raise, because this is already respected according the above mentioned Belgian law of 15 June 1935 concerning the use of the languages in judicial matters
The requirements of the Directive as a whole were transposed into Bulgarian law by an amendment of the Bulgarian Criminal Procedure Code (CPC) published in “State Gazette” No. 21/2014. No specific rule was introduced concerning the time to provide interpretation, e. g. “without delay”, “in due time”, etc. Nevertheless, there is no information about cases where interpretation was secured with unreasonable delays. Judges informed me that sometimes there had been certain negligible delays caused by the need to find an interpreter from a language usually defined as “rare” but in practice these problems were solved in due time. In my view, delays caused by the need to find an interpreter from a “rare language” are to be excused for the sake of the necessity to guarantee the right to interpretation of suspected or accused persons who do not speak or understand the language of proceedings but can only use their “rare” mother tongue.
The Directive 2010/64 has been transposed in the Croatian Code of Criminal Procedure ( Official Gazzete No 152/08, 76/09, 80/11, 121/11, 91/12, 143/12, 56/13, 145/13, 152/14; furthermore: CPC). According to article 8 of the CPC, competent authorities generally provide without delay, interpretation of all necessary documents including the interpretation and translation of communication with his defence lawyer, on request of the supect or accused person.
According to article 4(1) of the Law that provides for the Interpretation and Translation during the Criminal Proceedings (L.18(I)/2014), the competent authority provides interpretation, without delay, to a suspect or an accused person, who does not speak and/or understand the language in which criminal proceedings are taking place, during the criminal proceedings before investigative and/or judicial authorities, including police questioning, all court hearings and any necessary interim hearings.
Additionally, every person arrested by the Police is informed immediately after his/her arrest in a language that he/she understands about his/her rights (article 3(1), Rights of Persons who are Arrested and Detained Law (Law 163(I)/2005). In case that the arrest is carried out outside the police station and the member of the Police does not know the language understood by the arrested person or does not have the necessary means to inform the arrested person, he is obliged, right after his/her admission to the Police Station, to inform the person in charge of the questioning, who is obliged to inform the arrested person, before the questioning starts (article 7 (2).
The national legislation does not include the time of provision (e. g. “without delay”).
However, I have not observed in practice any problems with fulfilment of this requirement, when a defence lawyer is present during a legal act (as a police questioning or a court hearing).
Right to interpretation is guaranteed by § 10(2) of the Estonian Code of Criminal Procedure (CCP), which provides: "The assistance of an interpreter or translator shall be ensured for the participants in a proceeding and the parties to a court proceeding who are not proficient in the Estonian language". As far as the time of provision is concerned, § 10(8) of CCP states that oral translation [i.e. interpretation] shall be ensured immediately.
§ 161(1) of CCP adds that "If a text in a foreign language needs to be interpreted or translated or if a participant in a criminal proceeding is not proficient in the Estonian language, an interpreter or translator shall be involved in the proceeding". The term 'shall be involved' means that it is the duty of the government authority who handles the proceeding to arrange an interpreter to be present when required by law.
According to § 161(2) of CCP, if an interpreter or translator does not participate in a procedural act where the participation of an interpreter or translator is mandatory, the act is null and void.
According to the Criminal Investigation Act, during the pre-trial investigation stage the criminal investigation authority shall ascertain whether or not the party needs interpretation. The criminal authority shall ensure that the party receives the interpretation that he or she needs. In practice this is ensured quite well, even though sometimes in practice it has been noted that the authority has not arranged for a competent (usually English) interpreter, but conducted the interrogation directly in English and then it has been noted, for example by the defence lawyer, that the authority is not actually speaking (usually English) very well.
To implement the directive n°2010/64/EU on the right to interpretation and translation in criminal proceedings, France passed the law n° 2013-711 du 5 août 2013 which was dispatched in the Criminal Procedure Code in the following articles :
- preliminary article,
- D. 594 à D. 594-11.
This right only concerns the suspected persons or prosecuted persons.
Article 594-8 provides that interpretation should be performed in a reasonable time.
The right to interpretation is provided at the beginning of the deprivation of freedom during custody (garde à vue) according to article 63-1 of French Criminal Procedure Code.
In practice there are no problems as police have lists of interprets ready to intervene. Only interprets in rare languages are sometimes difficult to find or too busy (ouigour, somalien, etc...).
Under Article 233 of the Greek Code of Criminal Procedures, as replaced by Law 4236/2014 and practice, interpretation is predicted to be provided without delay.
While law allows, in practice an interpreter is not called during police questioning. The defendant is asked orally whether he/she speaks Greek and if not, his/her personal data are recorded and an interpreter is called at a later stage, during the examination by the investigator, or directly to the court (e.g. flagrante procedure).
In the Hungarian criminal procedure the right to interpretation is a fundamental right, every suspect or accused (even witness and other parties in the procedure) has the right the right to use his/her mother tongue. The competent authorities communicate with the suspect or the accused through interpreters. During the court procedure, an interpreter is always present if necessary. During investigation, no hearing of the suspect will be started without an interpreter.
Even prior to the passage of directive 2010/64/EU which Ireland has voluntarily opted into, there was an acknowledgement on the part of investigating authorities that interpretation and translation were essential to ensure due process and a fair trial pursuant to the Irish Constitution 1937.
It followed that Ireland legislated promptly for this measure in two statutory instruments dealing respectively with Police Stations and Courts
The reality however is that the interpretation and translation is limited insofar as it tends to deal with verbal exchanges rather than with written documents and there are problems in terms of the consistency of quality of service.
Typically when a person has clear linguistic difficulties the police (An Garda Siochana) will source an interpreter. From time to time one encounters complaints where the police have failed to do so maintaining that they believe the suspect had a good enough command of English to do without an interpreter. However given that there is a separate development ensuring the persons have a right to have a lawyer present with them during questioning the police are now much more likely to comply given that there will be an independent person present who will raise the absence of an interpreter where one is required.
Interpreters are generally available as the work is lucrative and there is quite an amount of competition for translating work. Accordingly in the major population centres it is generally possible to source of an interpreter in the principal languages without appreciable delay.
The contract to supply this service is awarded by the police and the Courts service on a national basis.
The situation is reversed where the detention is in a remote area or where the language is one of the more uncommon ones.
It should be at the moment the letter of rights is served.
This requirement of the directive is usually met in practise. Normally, an interpretation for communication between the suspect or accused and the competent authorities is being provided to the suspect or accused without a delay, except the unprejudiced situations where the suspect or accused speaks a language that is not practised widely in Lithuania. In such cases sometimes it takes time to find an interpreter and it determines the situations where the suspect or accused is not being provided with an interpretation without a delay.
First of all one has to underline that the directive is still not implemented in national law.
In practise the undersigned has meanwhile to notice that a foreign language speaking person has under Luxemburgish practise the guarantee to obtain a translation “from the very first moment “ or “without delay” when such a person is put under criminal proceedings.
The practise is far more “avangardiste” and much more respectful of defence rights than our criminal procedure law.
Considering the geographical size of Malta, provision of interpreters is generally timely.
Current regulations of the Polish Code of Criminal Proceedings of 1997 (the Article 72 § 2 as well as the Article 204 § 2) regarding the right to interpretation don’t contain the requirement concerning the time of provision. Particularly, there is neither phrase ‘without delay’ nor other equivalent one. However – in the light of other regulations of CCP - a suspect or an accused shall be instructed about the right to interpretation or translation by the first examination. In consequence, the first examination shall be conducted in the presence of an interpreter summoned ex officio by the proper authority to assist a person in the mentioned activity.
The national law so provides; in practice it may happen a certain delay concerning the time of provision.
According to Sec 28 para 1 CCP if there is a need to translate the content of a statement or if the suspect or accused declares that he does not understand the language of the proceedings or he does not speak this language, he shall be assigned an interpreter by a ruling. The recording clerk may also exceptionally act as an interpreter. If the suspect or accused chooses a language, for which no interpreter is listed in the register of interpreters, or the act must be performed without delay and the listed interpreters are not available, the law enforcement authorities or the court shall engage an interpreter of the official language of the state understandable to the person.
According to the case law (eg Supreme Court ruling file no. 3 Tdo 57/2012), the right of the accused to use language he or she understands during the criminal proceedings is one of the fundamental principles of the Code of Criminal Procedure. The same right is guaranteed by the Constitution of the Slovak Republic in Article 47.
If the accused declares that he does not speak the language of the proceedings, he shall have the right to be assigned an interpreter or a translator (Sec 2 para 20 CCP). In practice the time requirement is respected and interpreters are assigned without delay.
The right of interpretation is provided in the Article 8 of the national law (Procedural Law, Zakon o kazenskem postopku – ZKP-M). For the suspect, this right is provided as soon as he/she becomes a suspect in the police investigation and before the police starts to interrogate a suspect.
Since the right of interpretation 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, I cannot comment on the situation in practise.
The interpretation is provided at the time of the communication. Generally speaking, mostly concerning usual foreign languages (English, French), there is no delay. However, due to lack of interpreters some delay exist in small cities in comparison to major cities.
A suspect or accused person that do not master the Swedish language is entitled to interpretation at all stages of the criminal proceedings. The right to interpretation applies from the time that the suspected person is made aware of that he or she is suspected of having committed a crime.
In principle, Swedish practice can be said to comply with the right to interpretation without delay as referred to in Article 2, although there is no provision expressively ensuring a prompt access. Such delay that occasionally might occur is often due to the difficulties finding a qualified interpreter. In these situations the interpreter is normally engaged to assist via telephone.
article 27 paragraph 4 Netherlands Code of Criminal Procedure (NCCP), from the moment a person is considered a suspect, the right to have the assistance of an interpreter arises. This applies to police in-terrogations (article 29s NCCP), interrogations before the examining magistrate (article 191 NCCP) and before the court in first (article 274 NCCP) and second instance (article 415 juncto 274 NCCP). In case the suspect is not interrogated immediately upon his arrest he must be informed about the reason of his arrest in a language he understands upon arrival at the police station or the moment he is brought be-fore the acting public prosecutor at the latest.
Prior to that it has to be determined whether the suspect has (sufficient) knowledge of the Dutch lan-guage (see § 3.3 Instructions on assistance of interpreters and translators during investigation and pros-ecution of criminal acts 'Aanwijzing bijstand van tolken en vertalers bij de opsporing en vervolging van strafbare feiten, hereinafter: the Instructions) and, if not, which language he does fully have command of (see § 3.4 Instructions).
It is common practice for suspects who do not have a (thorough) command of the Dutch language, to be assisted by an interpreter when interviewed before aforementioned authorities.
Experience shows that the time lost directly after the arrest of the suspect because of the number of available interpreters as well as the possibility to appoint an interpreter by phone is acceptable.
When a suspect is brought before the public prosecutor or will be heard in court, it is practically always possible to invite and appoint an interpreter for that meeting.
>The right to be assisted by an interpreter during an interrogation has been enshrined in the law.
>In practice interpreters are engaged swiftly, so the time lost in the procedure is acceptable.
England and Wales
A person detained in a police station for the purpose of questioning who does not appear to speak or understand English must not be interviewed without an interpreter present in accordance with the relevant Codes of Practice which implement the Directive (see below). There is no explicit ‘without delay’ provision in the Code of Practice. However, as a person can only be detained in a police station (in normal circumstances) for a period of 24 hours, there is an incentive to arrange interpretation services as soon as possible in order to progress the investigation.
The directive on the right to interpretation and translation in criminal proceedings was implemented in Scotland by The Right to Interpretation and Translation in Criminal Proceedings (Scotland) Regulations 2014, which came into force on 19 May 2014.
In terms of national practice, in Scotland, there is an agreed a Code of Practice (CoP) which sets out the various responsibilities and obligations of organisations working with interpreters in the Scottish criminal justice system. Interpreters are engaged to assist individuals who come into contact with the criminal justice system and do not speak English, do not understand English, have a hearing impediment or have a speech impediment.
The CoP provides an overview of what is expected from each of the partners when instructing the services of an interpreter to assist in a criminal court case - from the first stage of the police investigation through to court proceedings and disposal of a case. It also sets out what these organisations should expect from the interpreter assigned to work on a criminal case in a Scottish court and provides an overview of what will happen in relation to the provision of translation of essential documents.
The CoP was developed by the Working Group on Interpreting and Translation (WGIT). This group aims to establish common standards for interpreting and translation in the criminal justice system. Its members are drawn from the main criminal justice partners – Police Scotland, the Scottish Courts and Tribunals Service (SCTS), the Crown Office and Procurator Fiscal Service (COPFS), the Scottish Legal Aid Board (SLAB) and the Law Society of Scotland. A representative from the Inspectorate of Prosecution periodically attends meetings to observe proceedings. WGIT members also seek advice from organisations with extensive knowledge and experience in the field of interpretation.
The Scottish Children’s Reporter Administration (SCRA) are also represented. Children’s hearing and related court proceedings are not criminal proceedings however SCRA are parties to the current joint contract for the provision of interpreters and translators and share an interest in the standard of service provided.
In terms of the 2014 Regulations, reg 3, where a person is taken into police custody (or attends voluntarily for the purpose of being questioned about an offence he is suspected of having committed) then a constable must take “all reasonable steps” to determine whether he requires interpretation assistance because he does not speak or understand English, and where the constable determines that such assistance is required, it must be provided “as soon as reasonably practicable”.
Police station all written material re the rights translated. Copy given in clients own language Telephone interpretation facilities used to explain authorisation of detention process if interpreter not already physically present
Interview- interpreter present both to allow completion with lawyer in private and interpret police questions and clients answers in interview
Court- some delay re translation. Not available until prosecutors ready to proceed Always provided before client required to indicate plea of guilty or not guilty Funding to cover same has to be secured in advance
the stages for which provision is made (e.g. all the proceedings mentioned)?
Interpretation is provided at all stages of the proceedings (evidence hearings and court hearings), i.e. by the police, the prosecutor and the court(s) (§ 56(1)+(2) and § 53(1) first sentence StPO).
NO point to raise, because this is already respected for all the proceedings from the very first communications/interview of the suspect, accused (and victim) according the above mentioned Belgian law of 15 June 1935
Provision of interpretation is made for all stages of criminal procedure and covers all the proceedings mentioned by the Directive. There is no information about cases where the right to interpretation has been practically denied at a given stage of criminal proceedings.
Interpretation is provided at all stages of the proceedings.
The Law that provides for the Interpretation and Translation during the Criminal Proceedings (L. 18(I)/2014), applies in criminal proceedings and proceedings for the execution of a European Arrest Warrant from the moment when a person is informed by the competent authority, with official notification and/or otherwise, that he/she is suspected or accused of having committed a criminal offense until the conclusion of the proceedings, which is understood to mean the final determination of the question whether they have committed the offense, including judicial decision on any appeal brought ((Article 3(1))
The right to interpretation applies throughout the whole criminal proceedings. Section 2 of the Code of Criminal Procedure (Act no. 141/1961 Coll., furthermore only “CCP”), which contains main principles of the criminal proceedings, in its paragraph 14 states: “Everybody who proclaims that he does not command the Czech language, is entitled to use before the law enforcement authorities his mother tongue or language that he states he commands”. This principle, which stems from the Article 37(4) of the Charter of fundamental rights and freedoms (Act no. 2/1993 Coll.), is further elaborated in Section 28 CCP (see below).
I have not observed in practice any problems with fulfilment of this requirement, when an attorney is present during a legal act.
Right to interpretation is applicable in all stages of criminal proceedings.
During the pre-trial stage the right to interpretation is described above. During proceedings in courts, be it a coercive measures trial (detention etc.) or a main hearing the right to use one’s own language and to interpretation is provided for in the Criminal Procedure Act, according to which persons other than those speaking Finnish, Swedish or Sami have the right in court proceedings in which they are either suspects or complainants, to use a language that they understand and speak sufficiently, and persons using sign language have the right to use this. The court shall ensure that the party receives the interpretation that he or she needs.
The right to interpretation is provided at all stages of proceedings according to articles 62, 63-1, 102, 114, 121, 272, 279, 344, 393, 407, 535, 695-27, 695-30, 706-71 of French Criminal Procedure Code.
Under Article 233 of the Greek Code of Criminal Procedures, as replaced by Law 4236/2014 and l practice, interpretation is predicted to be provided at each stage of criminal proceedings.
Practically, during the arrest and police questioning, interpretation is not provided. Usually, an interpreter for the first time is assigned before the investigator (sometimes even before court), where the indictment is briefly described to the accused.
See above regarding the stage of investigation and court procedure.
The vast majority of engagements which a suspect will have with the authorities will commence with an arrest for the purpose of questioning. In a limited number of cases a request is made to voluntarily attend for interview but most suspected persons will be advised by their solicitors that it is preferable to be interviewed under arrest given that there are safeguards in place and time limitations.
Typically an arrested person will be given a written notice of rights. A copy of the notice in the English-language is attached. It will require revision in the light of measure B. The notice is currently available in police stations in a number of languages.
Once it is appreciated that an interpreter will be necessary to facilitate an interview the police will seek to obtain an interpreter as quickly as possible. They will also advise the suspect of his right to consult a solicitor and the solicitor will in turn advise the client of his right to be present with him during interview.
Where documents are put to suspects in the course of interview they typically will be only in the original language (generally English) and the interpreter will translate the document to the suspect. This is very unsatisfactory insofar as suspects may be asked to consider complex documents which require repeated reading without the benefit of a copy of the document in a language that they understand.
From the first moment the accused is made aware of the proceeding or the moment from there is granted the right to have access to the file.
All the proceedings mentioned.
The stages for which provision is made are not indicated in the national law but, in practise, it covers all the proceedings mentioned, i.e. interpretation during criminal proceedings before investigative and judicial authorities, including during police questioning, all court hearings and any necessary interim hearings.
Translation is guaranteed and granted at the police station hearing, during the interrogation by investigative magistrates, and during the hearing concerning the merits of the case in first instance and in appeal.
Also during every request concerning provisional liberty the person under procedure has the right and the guarantee to be assisted by a translator, even if he puts his request for provisional liberty without any help of a lawyer.
All stages of proceedings
In the mentioned Articles (72 § 2 and 204 § 2) there is not indicated a certain stage for which provision is made. It means that general rules of interpretation should be applied. According to such rules suspects or accused persons have the right to interpretation during the whole criminal proceedings (i.e. at the stage of preparatory proceedings and proceedings before courts).
Interpretation is provided during all the criminal proceedings before investigative and judicial authorities.
The right applies to all stages and all proceedings.
The provision is made for all the proceedings mentioned.
England and Wales
The Directive has been implemented in England and Wales through the revision of rules which govern the treatment of persons in police custody (Codes of Practice to the Police and Criminal Evidence Act 1984) and the Criminal Procedure Rules 2014 (Crim PR) which provide rules for all criminal proceedings in Magistrates’ Courts, Crown Courts, and the Court of Criminal Appeal in England and Wales.
In places of detention (including police stations), the new rules spell out that the duty to provide interpreters applies not only to persons detained but also to those who are being interviewed under caution without having been arrested (para.13.1(b)). The arrangements made must comply with the minimum requirements laid down in the Directive. New para.13.1A states that these include that the arrangements made and the quality of interpretation and translation provided shall be sufficient to ‘safeguard the fairness of the proceedings, in particular by ensuring that suspected or accused persons have knowledge of the cases against them and are able to exercise their right of defence’. This term which is used by the Directive means that the suspect must be able to understand their position and be able to communicate effectively with police officers, interviewers, solicitors and appropriate adults as provided for by this and any other Code in the same way as a suspect who can speak and understand English who does not have a hearing or speech impediment and who would not require an interpreter.
In the Magistrates’ Court and Crown Court, the rules are less prescriptive. In accordance with Crim PR Rule 3.9, in order to prepare for trial, the court must take every reasonable step to facilitate the participation of any person, including the defendant. Facilitating participation includes ‘finding out whether the defendant needs interpretation because the defendant does not speak or understand English; or the defendant has a hearing or speech impediment.’ Where the defendant needs interpretation, the court officer must arrange for interpretation to be provided at every hearing which the defendant is due to attend; interpretation may be by an intermediary where the defendant has a speech impediment, without the need for a defendant’s evidence direction. The court officer is usually a legally qualified assistant to the bench in the Magistrates’ Court, and a lay assistant to the judge in the Crown Court. The provision of interpretation services is essentially an administrative task.
In terms of the 2014 Regulations, provision is made for interpretation at all stages of the criminal justice process, from the time that an accused person is taken into police custody (as discussed above), to the conclusion of criminal proceedings (including pre-trial proceedings, the trial, sentencing diet and any appeal proceedings).
In terms of practical arrangements, it is the responsibility of the police to advise the procurator fiscal in the police report whether the accused requires the services of an interpreter to give evidence in court. The reporting officer should specify the language and dialect required in the police report and should also provide the name, designation and qualifications of any interpreter used at the investigative stage so that the procurator fiscal and the Scottish Court and Tribunal Service may ensure that, so far as possible, the same interpreter is not used at any court diet.
It is recognised that there is limited time available between arrest and the first appearance of an accused person in custody. In all cases therefore where accused persons are appearing for the first time from police custody/warrant/next day undertaking the police will, so far as possible, arrange, on behalf of the Scottish Court and Tribunal Service, for a suitably qualified and experienced interpreter to appear at court to assist the accused. The interpreter engaged for court should not be the same interpreter who assisted the accused during the investigation stage although it is recognised that it may not always be possible to secure the services of a different interpreter who has appropriate qualifications and experience given the limited time available. The fact that the police have engaged an interpreter for the accused’s first appearance from custody should be set out in the police report to the procurator fiscal. If difficulties arise in securing the services of an interpreter the police should make early contact with the Scottish Court and Tribunal Service and advise the procurator fiscal.
In respect of all other criminal court diets, both pre-trial and trial diets, it is the responsibility of the Scottish Court and Tribunal Service to engage a suitably qualified and experienced interpreter, skilled in the language and dialect required to assist the accused. In respect of all other diets (such as undertakings or first diets/preliminary diet) the procurator fiscal will advise the sheriff clerk (or in high court cases the deputy principal clerk of Justiciary) in writing of the language needs of the accused, namely the language and dialect as set out in the police report as soon as practicable but at least 7 days before the scheduled diet. For rare languages (where there may be a limited numbers of suitably qualified interpreters), the procurator fiscal should advise the sheriff clerk (or depute clerk of Justiciary) of the language requirement as soon as the case is marked to allow SCTS sufficient time to source a suitable interpreter.