28 March 2012
Note comparing the Council and Commission proposals on the right to interpretation and translation in criminal proceedings
by Professor Steve Peers,
University of Essex
1) the basic scope of the two proposals is slightly different. The Commission proposal applies where a person is informed that he is a suspect, whereas the Council proposal applies where a person is 'made aware that' he or she is 'suspected or accused of having committed a criminal offence'. Both measures apply until the conclusion of proceedings, but the Council version further defines what this concept means. (Art. 1(2), both versions).
2) On the same point, the Council version has an exclusion from its scope that does not appear in the Commission proposal (Art. 1(3), Council version):
'This Directive shall not apply to proceedings which may lead to sanctions being imposed by an authority other than a criminal court, as long as those proceedings are not pending before a court having jurisdiction in criminal matters.'
3) the right to interpretation applies in the Commission proposal to persons who cannot 'understand AND speak' the language, whereas the Council version applies where a person cannot 'understand OR speak' it. The Commission proposal requires this interpretation 'without delay' and refers also to the quality of interpretation, whereas the Council version specifies which language the proceedings are to be translated into. (Art. 2(1), first sentence).
The Commission proposal applies to 'necessary' meetings between a suspect and his/her lawyer, whereas the Council version refers to all such communications. It also provides that interpretation 'may' be offered in proceedings other than those listed. (Article 2(1), second sentence). The Council version contains an extra proviso that 'This provision does not affect rules of national law concerning the presence of a legal counsel during any stage of the criminal proceedings.'
4) The Commission version contains an extra proviso that legal advice must be interpreted (Art. 2(2), Commission version), although arguably this is covered by the Council version's reference to all communications between suspect and lawyer.
5) the reference to a procedure or verification of whether the suspect understands the language of proceedings is worded slightly differently (Art. 2(3)).
6) the Commission version refers to a 'challenge' of a refusal to interpret, whereas the Council version refers to a 'review', with the added proviso in the Council version that 'Such review does not entail the obligation for Member States to provide for a separate mechanism in which the sole ground for review is the challenging of
such finding.' (Art. 2(4)).
7) Right of translation of documents: the Council version specifies that the documents must be essential for the fairness of proceedings, whereas the Commission version just refers to 'essential' documents; the Council version again specifies the language to be translated into while the Commission version again refers to the quality of translation; the Council version specifies that the right applies to 'at least the important passages of such documents', and adds the proviso, 'provided that the person concerned has the right of access to the documents concerned under national law.' (Art 3(1)).
8) The Council version adds the words 'The competent authorities shall decide which are the essential documents to be translated under paragraph 1', but then also includes a variation on the Commission definition of which documents are 'essential' (Art 3(2)). The Council again refers to translating possibly only 'passages' of the documents and drops the reference to translating 'documentary evidence' found in the Commission proposal.
9) as for the request to translate further documents (Art 3(3)), the Council version adds the words 'which are necessary for the effective exercise of the right of defence,' while the Commission version refers also to written legal advice from the suspect's lawyer.
10) the possibility of challenge or review of a negative decision is slightly different (art 3(4)), cf the provisions on challenge or review in the context of interpretation (see above).
11) the Commission version requires legal advice before the right can be waived (Art 3(6), Council version Art 3(7)).
12) the Council version contains an extra restriction (Art 3(6), Council version):
'6. Provided that this does not affect the fairness of the proceedings, an oral translation or an oral summary of the documents referred to in this Article may, where appropriate, be provided instead of a written translation.'
13) the references to quality of interpretation and effectiveness of interpretation (Art 5) are similar except they refer to different issues (quality in the Council version, effectiveness in the Commission version). The Commission version also refers to training (Art 5(2)).
14) the Commission's version of the non-regression clause (Art 6) refers also to the EU Charter of Rights.
15) the deadline date is six months earlier in the Commission proposal, with a requirement to refer to the EU measure in national law and also to submit a correlation table (Art 7)
16) the Commission report comes six months earlier in its proposal (Art 8) and includes a report on cost implications
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