First CJEU ruling on Directive 2010/64/EU (right to interpretation and translation in criminal proceedings)

On 15 October 2015 the Court of Justice of the European Union (CJEU) issued its first preliminary ruling concerning EU Directives on procedural safeguards in criminal proceedings (Stockholm Roadmap), including the right to language assistance. The decision in the case of Covaci (C-216/14) concerns the conformity of provisions of German national law in the light of Directives 2010/64/EU, on the right to interpretation and translation, and 2012/13/EU, on the right to information. The issue under the former was specifically one of written translation and, while the ruling serves to emphasise the general scope and objectives of the directive, the Court’s conclusions were rather negative as regards the case at hand.

The case concerned a Romanian national who was charged in Germany with driving without motor insurance and with having forged the green card. This being a minor offence, the public prosecutor asked the Local Court to issue a “penalty order” imposing a fine on Mr Covaci. Under the relevant procedure, he had two weeks within which to file an “objection” against that order and the involvement of a lawyer was not mandatory. His opposition could either be in writing or lodged orally at the court. German law did not provide for a free translation of a written appeal against the penalty order.

With regard to Directive 2010/64, the CJEU’s general conclusion was that it did not prevent national law from requiring that the written appeal be drafted in the national language, even if the appellant did not speak it. This rather restrictive approach is basically the result of a lacuna in Article 3 of the Directive (right to translation of essential documents), which provides for the translation of certain documents into the language of the suspect or accused person but not into the court’s language, i.e. no express provision is made for any documents in the defendant’s language that he or she may wish to bring to the attention of the national court or authority. The CJEU acknowledged this lacuna, having also examined whether such a translation could be covered by Article 2 (right to interpretation), as the Advocate General had recommended (Opinion of 07/05/15). The Court reached the rather obvious conclusion that interpretation concerned only “oral communications … to the exclusion of written translation”! It thus pointed out that Mr Covaci could have had an interpreter if he had lodged his appeal orally at the German court (even though he had, presumably, returned to Romania), but not a translator for his written appeal. The CJEU unfortunately found that it would “go beyond the objectives” of the directive if the authorities were required to “take responsibility … for the translation of every appeal”, justifying this point by relying on ECHR case-law to the effect that a fair trial did not necessitate a written translation of all items in the file.

It could be argued that the Strasbourg case-law is potentially more protective of the right to written translation into the national language. In the case of Kamasinski v. Austria (§ 74) the relevant finding under Article 6 § 3 (e) of the Convention read: “a person ‘charged with a criminal offence’ who cannot understand or speak the language used in court has the right to the free assistance of an interpreter for the translation or interpretation of all those documents or statements in the proceedings instituted against him which it is necessary for him to understand or to have rendered into the court’s language in order to have the benefit of a fair trial” (emphasis added). Subsequent cases have confirmed that the provision extends to the written, and not only oral, translation of a document. The ECHR case-law would thus not exclude the translation of the appeal at issue in the Covaci case (other sub-paragraphs of Article 6 § 3 could also be relied on), looking at the proceedings as a whole, even though there have been no test cases on that particular aspect to date.

To counterbalance its restrictive findings, the CJEU made two more positive points. It helpfully emphasised that Directive 2010/64 laid down only minimum rules and that member States were entitled to provide a higher level of protection, “also in situations not explicitly dealt with in that directive”, as was the case in Covaci. It then, however, somewhat confused the issue by saying that the written translation of an appeal, even though excluded from the definition of “essential document” in Article 3, could somehow fall under the Article 3 (3) provision whereby “[t]he competent authorities shall, in any given case, decide whether any other document is essential”, either of their own motion or in response to a “reasoned request” by accused persons or their legal counsel. While that is theoretically a laudable (albeit incoherent) interpretation, it raises a number of further issues. Firstly, it leaves full discretion to the authorities to decide on the need for such a translation on a case-by-case basis. Secondly, it is unlikely that the authorities would take such a decision of their own motion, especially as Article 3 (1) refers to the provision of translations to the suspect or accused, and not the other way round, as has already been pointed out. Thirdly, in the case of Mr Covaci it is difficult to imagine how he himself, without mandatory counsel and within a two-week period, could have submitted a “reasoned request” for his appeal to be considered an “essential document” for the purposes of Article 3 (3). It can merely be hoped that national legislation will compensate for the lacuna in the directive by providing for the translation of such appeals (even in the case of minor offences dealt with in fast-track procedures), to ensure the proper administration of justice and a fair hearing.

Text by James Brannan (translator at the ECtHR, all opinions being personal)