(b) communications between the suspect or accused and their legal counsel? are there any points to raise in particular regarding:
i. the occasion for which provision is made (e.g. all the proceedings mentioned)?
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Austria
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Interpretation must be provided if requested for the contact between the suspect or accused and the legal counsel, if this contact is in direct connection with evidence hearings, court hearings, any remedy or any other application (§ 56(2) StPO).
Therefore, the provision covers all proceedings mentioned. In practice, as long as any proceedings are pending, the courts (police or prosecution) cannot and do not check whether there is such a direct connection.
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Belgium
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NO point to raise : if the legal counsel (lawyer) does not understand the language of his/her client being suspect or accused, both may enjoy, according the good practices, the assistance of a legalised translator to translate the discussions between them, as for instance during the confidential consultation previous the first interrogation of an arrested suspect, as well as at any later stage of the proceedings.
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Bulgaria
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Interpretation is available for communications between the suspect or accused and their legal counsel during both pre-trial and trial proceedings. There is no information about cases where the right to interpretation has been practically denied at a given stage of criminal proceedings.
An example of good practice going beyond the requirements of the Directive: A new rule was introduced by the amendment of CPC pointed out in my answer to question 1 (a) i above, stipulating that “a witness shall not be interrogated about circumstances that she/he became aware of in her/his capacity of an interpreter during the communications between the accused and the legal counsel”. In my view, this is an effective domestic instrument to guarantee interpreters’ independence beyond the scope of the Directive.
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Croatia
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According to the Article 8 of the CPC, interpretation of the communication between the suspect or accused person and his defence lawyer must be provided in all stages of procedure, if it is requested.
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Cyprus
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According to article 4(3) of the Law that provides for the Interpretation and Translation during the Criminal Proceedings (L.18(I)/2014), where necessary for the purpose of safeguarding fairness of the proceedings, interpretation is available for communication between suspect or accused persons and their legal counsel, if this is directly relevant with the questioning or/and hearing during the proceedings or/and the execution of a European Arrest Warrant, or/and with the lodging of an appeal or/and other procedural applications, including the application for guarantee.
According to article 12(4) of the Rights of Persons who are Arrested and Detained Law (Law 163(I)/2005) in the case of detained persons who are foreigners or of detained persons with whom the lawyer cannot communicate in a language they understand for any reason, an interpreter or another person may also be present during the consultations, following relevant request submitted by the lawyer, so that the lawyer may communicate with the detained person in a language the latter understands.
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Czech Republic
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The new implementing legislation states in Section 28(1) CCP: “the appointed interpreter shall interpret on his request (note: on the request of the accused or suspect) also his consultation with the defence lawyer in the course of the legal acts”.
I am of the view that the wording of the new implementing legislation does not fully comply with the respective Article 2(2) of the Directive. In my opinion the national legislation has implemented this right too narrowly as it applies it only to “the course of the legal acts”, contrary to the Directive´s wording “in direct connection” with the legal acts. It is my understanding of the wording of the Directive (and it would seem only logical from the point of proper exercise of defence) that the Directive intends to cover not just the communication between a defence lawyer and a client during e. g. the court hearing itself but also preparations between the accused or suspect and his defence lawyer for this court hearing as e.g. consultations in a prison or defence lawyer´s office before the hearing.
Though the Directive was implemented in this regard narrowly, I experienced in practice that my costs of the ex officio defence lawyer, which I had to pay to the interpreter whom I needed for the consultation with my client, who was a foreigner and with whom I did not share a common language, in a prison, were at the end of the criminal proceedings covered by the state.
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Estonia
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§ 10(21) of CCP provides the following: "If a suspect or accused is not proficient in the Estonian language, he or she shall be ensured the assistance of an interpreter or translator at his or her request or the request of his or her counsel at the meeting with the counsel which is directly related to the procedural act performed with respect to the suspect or accused, the application or complaint submitted. If the body conducting the proceedings finds that the assistance of an interpreter or translator is not necessary, the body shall formalise the refusal by a ruling."
The provision covers all stages of the proceedings.
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Finland
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During the pre-trial investigation stage, please see above. Usually the investigative authority arranges for an interpreter, but the legal counsel can also do this. If for some reason it is not known in advance that the suspect needs an interpreter, the interrogation will be postponed in order to get an interpreter present.
During the court proceedings phase the courts arrange for the interpreter, unless it has been agreed that the legal counsel arranges this, and the suspect/accused is given the opportunity to discuss with their legal counsel prior to the proceedings. At least in the largest District Court in Finland (Helsinki) the interpretation services have been tendered by the Ministry of Justice, so in practice it is always the court that arranges the interpreter.
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France
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This right is only granted before all interrogations, before police or judges and hearings.
Special authorisations are required in such cases granted by investigation judges or court judges.
Not during the normal course of defense during meetings between the lawyer and his client or jail visits.
Therefore defense cannot appoint or directly ask the translator to intervene.
Article 594-3 states on this matter and rules the access a translator by the lawyer during :
- custody,
- interview before an investigation judge or a court judge,
- before any appeal against any jurisdictional decision,
- before any petition for freedom release.
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Germany
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Greece
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Under Article 233 of the Greek Code of Criminal Procedures, as replaced by Law 4236/2014 and practice, an interpreter is predicted to be provided when it comes to examining a suspect, an accused person, the civil defendant or a witness who do not speak or understand the Greek language sufficiently, or have hearing or speech problems. If necessary, interpretation is available for communication between the accused and their lawyers.
In practice, for example, when the accused can’t cover the cost, an interpreter can’t be provided, except when the communication is held before the authorities. In practice, to facilitate contact with the counsel (in prisons or detention centres), another prisoner who speaks Greek undertakes the task of interpretation, with the diligence of the accused person.
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Hungary
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During any procedural action before the competent authorities, the legal counsel may also ask for the assistance of the interpreter applied by the authorities. The legal counsel may ask for the assistance of the official interpreter during the procedure, but this affects the question of defence lawyer secret, since legal counsels may not want to have conversations under defence lawyer secret at the attendance of the interpreter applied by the authorities, notwithstanding the fact that interpreters also have the obligation on secrecy. Typically the legal counsels either communicate themselves or apply a private interpreter.
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Ireland
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At the conclusion of the period for which arrest was authorised the suspect will either be charged with an offence and produced before a Court as soon as maybe, or released unconditionally so that the file concerning the matter can be considered by the Director of Public Prosecutions.
If a charge is preferred the charge will be provided to the suspect in the English language only thereafter they will be produced before a Court where an interpreter will generally be provided to interpret the proceedings simultaneously. It is the exception rather than the norm that Court documents including witness statements will be translated and provided in written translated form. It is far more common that an interpreter will go over the statements with the suspect/accused and the suspect’s lawyer and translate them as they go along. This is unsatisfactory as it reduces the opportunity for a suspect to consider statements at leisure and at length and to give informed instructions thereafter.
The proceedings will typically be conducted in the English language with the interpreter translating simultaneously. In summary proceedings, which can carry on aggregate jail penalty of up to 2 years, the decision of the Court is generally given viva voce. No written decision is provided and accordingly the suspect, now a convicted person, is reliant on a simultaneous translation given at the time as to the reasons why the person has been convicted. This makes it quite difficult for a person to make an informed choice as to whether to appeal.
In more serious cases where the trial is conducted before a jury, the verdict at the conclusion of the case is either
1. guilty,
2. not guilty or
3. a failure to agree a verdict. No reasons are given and translation would add little to that process.
In the more serious cases it is not unusual for lawyers representing the accused person to apply to the Court that all the case materials be translated into a language that the accused understands. This should be the norm but unfortunately there are many cases where an application which would be favourably entertained by a Court is simply not even made by the defence lawyers on the dangerous assumption that the accused would have little to add to the defence.
As above the translation on a simultaneous basis is generally accommodated.
The principal complaint aired by practitioners however is that both in a police station context and in a Court context the same translator is used to translate on behalf of the authorities whether the police or the Court, as is used to translate private consultations between the solicitor and the client. This naturally leads to confusion on the part of the suspect who identifies the translator as being part of their defence team, as typically they will meet with the lawyer and translator before they meet with the interviewing police, and in interview treat the questions as though they were questions being posed by their defence and accordingly volunteer information which is detrimental.
Equally there have been instances where translators have unwittingly introduced into interview information which was communicated on a confidential basis in an earlier consultation by way of clarifying replies.
The general view of defence practitioners is that it is highly dangerous not to have separate translation provided to the defence from that which is provided for the purposes of the authorities.
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Italy
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An interpreter must be provided even for the communication between the accused person and the legal counsel. In practice this provision is applicable for accused under custody on during the trial or any other investigations in which is required the presence of the lawyer and the accused.
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Latvia
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All the proceedings mentioned.
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Lithuania
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Lithuanian law does not foresee the possibility to provide the suspect or accused with an interpretation for the communication between the suspect or accused and their legal council. Usually, if the suspect’s or accused’s legal council does not speak the language that the suspect or accused speaks and understands, the legal council has the possibility to communicate with the client via interpreter who works at the police station, at the prosecutor’s office or in the court but the suspect or accused and their legal council enjoy this possibility during the police questioning and the court hearing only. This means that the suspect or accused has no possibility for communication with their legal council before mentioned procedures and be properly advised on his/her rights and other related issues. If the suspect or accused requests for the interpreter in order to communicate with the legal council, he/she will be refused on the ground that the law does not foresee such a possibility.
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Luxembourg
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During this conversations a lawyer is present if needed and if requested, and this during all the stages of proceedings concerned.
The translation fees have to be advanced by the lawyer and in case of judicial assistance these fees can be entirely recovered by the ministry of justice.
The sole delicate situation is that very often the translator ordered by the prosecutor and by the investigating authorities is the same one as the one present in custody during the preparation of the case by the lawyer and the person pursued.
This is a very delicate situation and the undersigned proposes to separate these two situations, which means that a translator who was ordered by pursuant authorities can’t be asked anymore by the defence or vice versa.
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Malta
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As necessary
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Poland
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According to the Article 72 § 2 CCP an interpreter shall be summoned to participate in legal activities of the criminal proceedings, fulfilled with the obligatory presence of a suspect or an accused (e.g. in examinations, in inspections or viewings, in presentation for identification, in experiments and reconstructions of the scene of crime in police investigation or in prosecutor or court proceedings etc.). On the request of a suspect (an accused) or his (her) lawyer an interpreter shall be summoned whenever it is necessary to communicate between a suspect (an accused) with his (her) lawyer in reference to the legal activity in which a suspect (an accused) can take part (so, where his or her presence isn’t obligatory). This means that at every stage of the criminal proceedings, in case of activities of investigation and criminal justice bodies in which a suspect (an accused) must or is entitled to participate an interpreter shall be summoned to enable a communication between a suspect (an accused) with his (her) lawyer (in the above mentioned situations the interpretation is mandatory ex officio or upon the request). According to the Article 204 § 1 CCP an interpreter should be summoned whenever it’s necessary to examine or hear a person who entirely doesn’t understand and speak Polish language (or who doesn’t understand and speak Polish language in a sufficient degree). An interpreter should be summoned also in a situation in which there is a necessity to translate into Polish writings prepared in a foreign language or if it’s necessary to acquaint a suspect (an accused) with the taken evidence (Article 204 § 2 CCP).
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Portugal
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In several cases, interpretation for communication between the suspected or accused and their legal counsel is not provided by the State: it is up to the legal counsel to ensure the meanings to interpretation and/or translation.
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Romania
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Slovakia
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According to Sec 28 para 1 CCP, should the accused enjoy the right to interpreter, upon his request the interpreter shall interpret the content of the communication between the accused and the counsel throughout the proceeding or in the context of the proceeding, as regards submission of appeal or other procedural motions.
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Slovenia
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The right of translation of the privileged communication between the suspect (or accused) and their legal counsel for all the proceedings mentioned is provided in the Article 74/2 of the Law on Criminal Procedure.
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Spain
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Only before the procedural acts where the suspect or accused is going to be examined, and for preparing remedies or procedural applications. The communications have to be expressly sought by the lawyer or the suspect. In some occasions, delays arise.
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Sweden
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Suspects or accused persons have a right to communicate with the appointed public defence counsel during all stages of the criminal proceedings. In these communications, the suspected person is assisted by an interpreter, if needed.
The lawyer is normally offered the opportunity to speak in private with the client in direct connection to an interrogation and is then also given the opportunity to use the interpreter that the police has engaged for the questioning. In regards to court hearings the lawyer and the client generally have prepared the defence in advance. However, should a need for an interpreted consultation occur in direct connection to the hearing, a request on the matter is almost without exception granted by the court.
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The Netherlands
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The person considered as a suspect has a right to a counsel (article 28 paragraph 1 NCCP).
Starting point is that the suspect must have access to a counsel as often as possible. The same article, paragraph 4, creates the possibility to call in the assistance of an interpreter during the meeting between counsel and suspect.
In practice this process passes off smoothly, especially when the language to be interpreted is one of which the interpreter database holds many. Counsel has the opportunity to call in an interpreter via the national interpreter agency or to ad hoc contact one at a moment counsel thinks fit.
In summary
Suspect has the right to be assisted by an interpreter in communicating with his counsel.
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UK
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England and Wales
See above.
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Scotland
There is provision for the interpretation of communications between the suspect/accused and their counsel throughout the criminal justice process. Legal aid is available for this purpose to qualifying person. Where a solicitor is called to a police station to provide advice before or during police interview, the interpreter already engaged by the police will assist. For subsequent consultations and court appearances, sanction for the services of an interpreter will require to be sought from the Scottish Legal Aid Board, who maintain a register of interpreters (including languages spoken, geographical area covered, and qualifications).
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Northern Ireland
No issues
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