(f) whether the right to translation can be waived? under what circumstances? whether a waiver can be revoked?
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Austria
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The suspect may waive the right to written translation after information about his rights (§ 56(6) StPO). The information about his rights and the waiver must be recorded in writing. If the suspect is in arrest or detention, any waiver can be given only in the presence of the defence lawyer.
The waiver cannot be revoked, but the suspect may still request the translation of new documents.
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Belgium
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No waiver as such is foreseen, but art. 22 of the Belgian law of 15 June 1935 concerning the use of the languages in judicial matters stipulate that the suspect has to request the written translation of documents (see answer to question 2 above) at the latest within the 8 days after the judicial decision to send the file to the criminal court.
The criminal court who will judge the case on the ground, may however decide to let translate documents even if the suspect omitted to ask their translation within the said delay.
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Bulgaria
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The right to translation can be waived. The organs of pre-trial investigation and the courts are bound by law to inform the accused person about her/his opportunity to waive the right to translation, if she/he so wishes. But this could be done only in the presence of the defendant’s lawyer. Informing about the opportunity to waive the right to translation shall be done in writing and shall be signed by the accused person and her/his lawyer.
There is no legal provision explicitly admitting or denying the possibility to revoke a waiver. In practice, revoking is always admitted.
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Croatia
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According to the Article 8, Paragraph 7 of CPC, suspect or accused person can waive on his right to translation only in form of written statement, after the competent body explained to him/her legal consuquences of taking it.
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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 suspect, accused or fugitive has the right to resign from the written or/and oral translation or/and oral summary, provided by the Law, if the competent authority is satisfied that:
(a) the person has previously consulted a lawyer or/and he/she has otherwise obtained full knowledge of the consequences of such a waiver, and
(b) the waiver is unequivocal and given voluntarily. (Article 5(6))
Currently there is no provision in the legislation for a right to revoke the waiver. This is a problem and the law should be amended to include a clear right to revoke the waiver for whatever reason and at the time the suspect or the accused wants to exercise it.
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Czech Republic
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The waiver is possible both towards the obligatory documents enumerated in Section 28(2) CCP and “other” documents regulated in Section 28(4) CCP. The waiver triggers when the suspect or accused declares that he does not request the translation or oral translation. He has to be advised by a law enforcement authority before his declaration. The legislation does no regulate the right to revoke the waiver.
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Estonia
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Our regulations do not provide for the opportunity to waive the right to translation.
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Finland
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The right can be waived. In practice the suspect/defendant or counsel notifies about this to the authorities if no translation is required. Both according to the Criminal Investigation Act and the Criminal Procedure Act a translation may be left undone if the suspect/accused waives the right to a translation. No specific provisions exist in law under what kind of circumstances a waiver can be given, but the investigative authority and courts are required to give notice about the suspect’s right to translation. Also in the Government Bill (HE 62/2013) it is referred to the Directive in this regard and stated that the waiver must be given voluntarily.
The National Police Board has given an order on interpretation and translation in pre-trial investigation and coercive measures. In this order there are examples of phrases that can be used and included in the investigation report in cases of waiving the right to interpretation and translation. It is also emphasized that the waiver is completely voluntary.
There are in principle no legal hindrances for revoking the waiver. In the National Police Board’s order it is, however, suggested that the waiver regarding the right to translation of documents is “in principle” final, and in the model phrases referred to above it is stated that the suspect “voluntarily waives his/her right to translations in the current criminal proceedings in all its stages”. This waiver does not affect the right to interpretation the current proceedings or to translations in possible other proceedings.
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France
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The right on translation can be waived due to article preliminary, but according to Justice internal memorandum of instructions such a waiver is valid only if the person as been legally advised before waiving this right. (Circulaire du 31 octobre 2013, page 5).
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Germany
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Greece
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Yes. Under Article 236A par.4 of the Greek Code of Criminal Procedures, as replaced by Law 4236/2014 and practice, any waiver of the right to translation of documents referred to in the present Article shall be subject to the requirements that suspected or accused persons have received prior legal advice or have otherwise obtained full knowledge of the consequences of such a waiver. The waiver has to be unequivocal, without clauses or conditions, and given voluntarily.
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Hungary
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One may waive the right of interpretation and the right of translation. One may not revoke the waiver but may ask for an interpreter or translation.
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Ireland
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Translation is provided upon application. If an individual or his lawyer does not make an application, translation will not arise. Especially in less serious cases defence lawyers will wish to deal with the case through the English language on the basis that they will have a quicker and more expeditious hearing avoiding potentially a remand in custody while translation is arranged. Unfortunately this does lead to a situation where persons have no real understanding of the proceedings being brought against them or the reason for the outcome
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Italy
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There is no provision about waiver, unless the accused person states to understand the language.
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Latvia
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Right to translation can’t be waived.
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Lithuania
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Lithuanian law does not foresee the possibility to waive the right to translation. The documents that are indicated in the law as subjected to compulsory translation should be translated and served to the suspect and the accused.
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Luxembourg
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The right may be waived, after information of the consequences of such waiver.
And it must be possible to revoke a waiver as this one is never definitive.
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Malta
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Possible. This is minuted in proceedings. Waiver can be revoked.
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Poland
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In the light of provisions of the Polish Code of Criminal Proceedings concerning the right to translation (Article 72 and Article 204 CCP), such right cannot be waived. It’s the vital element of the principle of the fair trial. So the presence and professional assistance of the translator is mandatory on the each stage of criminal proceedings (also during investigation) if the general prerequisite of such presence and assistance appears. It is worthy to note that a lawyer of a suspect or accused can communicate with a client directly (without the participation of a translator summoned by the authority) when the lawyer speaks the language of the client. However such lawyer isn’t entitled to translate efficiently legal activities of proper authorities within the criminal proceedings substituting a separate figure of translator. A lawyer (defence counsel) cannot be treated as a translator in criminal proceedings in the light of the Article 204 § 3 CCP in relation with the Article 196 § 1 CCP and the Article 178 point 1 CCP.
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Portugal
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The right to translation can be waived only when the foreigner speaks and understands Portuguese but under no circumstances can be revoked.
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Romania
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Slovakia
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The accused may waive the right to translation. He/she must be informed on the possibility of a waiver, as well as on the possible consequences of the waiver. The accused may also request to have a document translated in a later stage of proceeding (and thus revoke the waiver).
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Slovenia
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The right to translation can be waived by the suspect of accused under the condition that the suspect or accused understands the language of the procedure and that he/she waives this right in written. It is unclear under the law whether this waiver can be revoked.
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Spain
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The right to translation can be waived by the suspect or accused if he/she was previously advised about this by a lawyer. The right to interpretation is not waivable.
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Sweden
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Within the Swedish legal system, there is no practice of waiving a right to translation.
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The Netherlands
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there is no provision laid down in the Code of Criminal Procedure about the way in which one can waive the right to an interpreter and translation. In practice, the right to assistance of an interpreter will soon be relinquished when the suspect himself states the he has sufficient knowledge of the Dutch language.
In case it appears in court that the suspect has misjudged his own knowledge of the language, it can as yet be decided to call in an interpreter. In certain cases the statements made to the police have been taken in the Dutch language. So some assertiveness is required of the suspect to exercise the right to an interpreter.
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UK
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England and Wales
A suspect detained in a police station may waive his right to a written translation of essential documents but only after receiving legal advice “or having full knowledge of the consequences and give their unconditional and fully informed consent in writing”. Also, the suspect may be asked if they wish to waive their right to a written translation. They must be reminded of their right to legal advice and asked if they wish to speak to a solicitor. No police officer or police staff should do or say anything with the intention of persuading a suspect to waive their right to a written translation. There are no provisions for revoking a waiver in the Codes of Practice. That is not to say there is no remedy. If the suspect is charged with a criminal offence, and subsequently at trial there is an issue about the reliability of the waiver of the right to translation, then the judge may exclude any evidence obtained in the questioning of the suspect from the trial.
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Scotland
Yes. An accused person can waive his right to be provided with a translation of essential documents. The waiver must be voluntary and unequivocal, and informed by legal advice (2014 Regulations, reg 15). The 2014 Regulations make no provision for the revocation of a waiver previously given, however in practice, standing an accused person’s right to a fair trial and the court’s overarching duty to ensure fairness, I would anticipate that a court would accept an express revocation of a waiver and instruct that essential documents be translated to assist the accused.
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Northern Ireland
In practice never seen this. Presumably if defendant waived his right to interpret but lawyer would not be able to act if views conflicted re need for interpretation
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