Procedural Safeguards for Suspects and Accused Persons in Criminal Proceedings: Good Practices Throughout the European Union

Adopting a practical perspective, this book provides a comprehensive analysis of the Directives adopted by the European Union concerning the rights of and safeguards for suspected and accused persons in criminal proceedings.

It is the result of a collaboration between scholars and legal practitioners, and the first work of its kind to examine all relevant rights and safeguards in a single volume. The book offers readers panoramic, functional and in-depth insights into the EU legal framework and related European case law, and highlights the main issues and gaps identified by the authors in legal practice. In addition, it provides recommendations, guidelines and effective solutions applicable to criminal proceedings.

• Language: English
• Publisher: Springer
• Release date: Dec 5, 2020
• ISBN: 9783030611774

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© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021

C. Arangüena Fanego et al. (eds.)Procedural Safeguards for Suspects and Accused Persons in Criminal ProceedingsSpringerBriefs in Lawhttps://doi.org/10.1007/978-3-030-61177-4_1

Guide to Good Practices Relating to the Right to Translation and Interpretation of Suspected and Accused Persons

Jaime Campaner Muñoz¹   and Nuria Hernández Cebrián²  

(1)

University of the Balearic Islands, Palma, Spain

(2)

Professional Association of Court and Sworn Interpreters and Translators (APTIJ), Valladolid, Spain

Jaime Campaner Muñoz

Email: [e-mail]

Nuria Hernández Cebrián (Corresponding author)

Email: [e-mail]

Abstract

This chapter points to the importance of ensuring quality in court and law-enforcement translation and interpreting. The absence of quality could undermine fundamental rights of both victims and defendants, namely effective judicial protection, due process and even the right to the presumption of innocence. Since legal translation and interpreting quality is the axis around which Directive 2010/64/EU revolves, it is essential to ensure that translators and interpreters working in this field meet high professional standards and hold suitable qualifications in order to guarantee that quality. Best practices so that legal operators can take the necessary measures to guarantee the right to translation and interpretation will also be discussed. Likewise, the chapter includes recommendations for guiding the work of legal interpreters and translators so that they can meet the quality requirement contained in Directive 2010/64/EU.

1 An Approach to the Issue

In Annette Hess’s recent novel, The German House,¹ it is described how the protagonist, the efficient interpreter Eva Bruhns, does not attain the desirable degree of precision when carrying out her first task as interpreter of the Frankfurt Public Prosecutor’s Office in the preparatory phase of the first Auschwitz trial:

That day, which was hot, rather sultry, we had to decorate all the windows. All the windows of hostel number eleven. We decorated them with sandbags and filled all the cracks with straw and earth. We tried our best, as we couldn’t make any mistakes. We finished our work in the afternoon. Afterwards they brought the eight hundred and fifty Soviet guests down into the basement of the hostel. They waited until darkness fell, for the light to be seen better, I suppose. Then they threw the light into the basement, through the air vents, and closed the doors. They forced us to enter first. Almost all the guests were in the light.

The men in the room looked at Eva, who felt slightly unwell. Something didn’t add up, although the woman continued to transcribe without flinching. However, the blond-haired man asked Eva:

Are you sure you have understood correctly?

Eva leafed through the specialist dictionary.

Excuse me. I usually translate contracts, that is, financial issues and compensation negotiations …

The men looked at one another. The blond-haired man shook his head impatiently, but the stout man by the window made a calming gesture. David Miller looked contemptuously at Eva from across the room.

She reached for the general dictionary, which was as heavy as a brick. She opened it and discovered that the guests were actually prisoners. Also, that this was no hostel; it was a block. And the light was not light. Nor the lighting. Eva looked at the man in the chair, who looked back at her as if inwardly he had passed out.

Eva said:

Sorry, I translated some things wrong. What he actually says is: We found almost all the prisoners suffocated by the gas.

There was silence in the room.[…].

We can be satisfied that we have found a substitute. At such short notice. Better than nothing.

To which the other man replied:

Let's continue. What else can we do?

The blond-haired man addressed Eva:

But if you are not sure about something, check it out right away.

She nodded. She translated slowly, and the woman transcribed just as parsimoniously.

When we opened the doors, some of the prisoners were still alive. Approximately one third. They had fallen short on the gas. The procedure was repeated doubling the amount, and this time we waited two days until opening the doors. The operation was a success.

Situations like the one described occur with greater or less intensity and more often than desired in police stations, prosecutors’ offices and courts, and the possible deficits and errors made by those who carry out such important translation and/or interpretation are not always visible. This can curtail, or even directly and irremediably violate, the fundamental rights to effective judicial protection and to a process with all the guarantees of both the victim and the accused, and, ultimately, the right to the presumption of innocence of the latter if, due to an error of interpretation or translation, it is considered that there is sufficient evidence to support a conviction.

Indeed, facts that are usually rich in nuances are investigated and tried in such a way that the smallest detail is important and the translator/interpreter must stay sharp and make a great effort in order to provide the judicial body with a service that is rigidly precise and context-sensitive. An error can be fatal and, what is worse, go unnoticed by the judicial officials that intervene in the process due to ignorance of the language in question and, even if they know the rudiments of the language, due to the most diverse factors (e.g., the harmful effect of some false friends—consider to pretend, whose meaning in Spanish is simulate, even though it tends to be translated as intend; to resume, which occasionally is translated as summarize, when, in reality, it means restart; or compromiso, which usually translates as "compromise, although the correct translation is commitment"-). The situation is complicated if it is noted, as we will see, that there is absolute indeterminacy regarding the mode and scope of jurisdictional control over the quality of interpretation and translation.

2 Normative and Jurisprudential Framework

The right to translation and interpretation in the courts is recognized in many legal texts at international and European level.

The International Covenant on Civil and Political Rights establishes in art. 14.3 a) that every person subjected to legal proceedings shall have the right, among other minimum guarantees, "to be informed without delay, in a language they understand and in a detailed manner, of the nature and causes of the accusation brought against them. In addition, section d) of the same provision recognizes that the right to be assisted free of charge by an interpreter, if they do not understand or speak the language used in court."

In the framework of the Council of Europe, and following the path of the previous Covenant, the European Convention on Human Rights establishes in its art. 5.2 that "every detained person must be informed, in the shortest possible time and in a language they understand, of the reasons for their arrest and any charges brought against them; while art. 6.3 recognizes their right to be informed, in the shortest period, in a language that they understand and in detail, of the nature and cause of the accusation against them [section a)]; and to be assisted free of charge by an interpreter if they do not understand or speak the language used in the hearing" [section e)].

In the context of the European Union, art. 2.5 of Directive 2010/64/EU² of the European Parliament and of the Council, of 20 October 2010, on the right to interpretation and translation in criminal proceedings, states unequivocally the following: Member States shall ensure that, in accordance with procedures in national Law, the suspect or accused has the right to challenge a decision finding that there is no need for interpretation and, when interpretation has been provided, the chance to complain that the quality of the interpretation is not sufficient to safeguard the fairness of the proceedings.

The Court of Justice of the European Union (CJEU) has ruled on the content of the right to translation and interpretation enshrined in the aforementioned Directive, although, prior to its implementation, there had already been previous pronouncements related to this question.

The historic Court of Justice of the Communities considered that art. 6 of the Treaty establishing the European Economic Community in force at that time "is opposed to national regulations that grant citizens of a particular language, other than the main language of the member State concerned, residing in the region of a given territorial entity, the right to obtain criminal proceedings in their language, without conferring this right on nationals of the same language of the other Member States who travel or remain in this territory", thereby preserving the principle of equality among community citizens enshrined in the aforementioned article (Judgment of the Court Bickel and Franz³).

Following the implementation of Directive 2010/64, the CJEU has interpreted the content and scope of the right to translation and interpretation enshrined in the aforementioned rule. The Court determined that, although arts. 1–3 allow the persons concerned to exercise the right of defence and safeguard the fairness of the procedure, this does not imply the translation of all the documents employed in the proceedings. Thus, the Court found it admissible that a State does not allow the passive subject of a criminal trial to object in writing to the accusation in a language other than the language of the proceedings, even if this person does not master the latter language, provided that the competent authorities do not consider that such opposition constitutes an essential document of the procedure (Judgment of the Court Covaci⁴).

Subsequently, the CJEU specified what should be understood as an essential document in the interpretation of art. 3 of Directive 2010/64, considering that a resolution provided by national law to sanction minor criminal offences issued by a judge after an abbreviated unilateral proceeding constitutes an essential document for the purposes of the provisions in the second section of the aforementioned article, and this must, therefore, must be transmitted in writing to the suspects or accused in a language they understand (Judgment of the Court Sleutjes⁵).

Moreover, art. 5.1 of Directive imposes on the Member States the following obligation: Member States shall take concrete measures to ensure that the interpretation and translation provided meets the quality required under art. 2(8) and art. 3(9).

The quality of interpretation and translation is the key element on which Directive 2010/64/EU hinges. For this reason, it is essential to ensure the professionalism and proper qualification of translators and interpreters, in order to guarantee the quality of the interpretation provided in judicial, fiscal and police headquarters. For such purposes administrations have the authority to apply rigorous selection criteria for translators and interpreters; yet more important is the introduction of measures to effectively supervise and control the quality of the service provided.

Not surprisingly, the jurisprudence of the European Court of Human Rights has highlighted that the responsibility of the authorities does not end with the appointment of the interpreter, but goes on to include verification of the quality of the service provided (see Kamasinski v. Austria⁶).

In fact, the ECtHR has established the obligation of the judge himself to ensure respect for the rights of the person under investigation. Thus, in Cuscani v. United Kingdom,⁷ the court stated that "the ultimate guardian of the fairness of the procedure was the Judge, who had been clearly warned of the