Lina Burkelc Juras, postgraduate student, Faculty of Law, University of Maribor, Slovenia.
Research interest: EU law, Arbitration, Family law, Company law
It is quite unimaginable that a person, who cannot understand the language of a certain country, could successfully defend itself in a criminal proceeding. Not understanding the language might be one of the greatest obstacles that a person can run into and it is necessary to provide interpretation and translation services in order for the accused or suspected to understand the nature and cause of the procedure led against them and therewith also ensure the fairness of the proceedings. To solve this problem, EU adopted the Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings. The adoption was made with the goal of ensuring mutual trust between Member States and preventing barriers that disable criminal procedures from fully operating.
- The right to interpretation and translation in EU
The right to interpretation and translation is based in Art. 6 ECHR, a counterpart of Arts. 47 and 48 of the EU Charter on Fundamental Rights. Yet, even if EU Member States are signatories to the ECHR that element is not sufficient for safeguarding trust in the criminal systems of the Member States. It was under that idea that EU finally adopted the Directive in October 2010. Slovenia made the necessary changes to its Criminal Procedure Act (CPA) in December 2014 by amending Art. 8 of the CPA.
The Directive most importantly provides that from the moment of becoming a suspect and until the conclusion of the criminal proceedings, a person is offered interpretation or translation assistance in all hearings and also the translation of documents, with an additional (but vague) requirement that the documents need to be considered essential.
This right can be waived if a person received prior legal advice or have otherwise obtained full knowledge of the consequences of such a waiver. The Directive emphasizes the importance of offering quality services and asserts the person with the right to challenge a decision whereby interpretation or translation is refused or the quality is not sufficient to safeguard their right to a fair trial. It also requires Member States to set up some sort of a register of independent and appropriately qualified interpreters and translators. In this regard, it has been discovered that there are highly divergent views on the criteria that should be applied to legal interpreters and translators.
- The legal situation and practice in Slovenia
In Slovenia, the right to interpretation and translation is regulated in Art. 8 of the CPA, however, the legal basis for this right can be also found in Arts. 19, 29 and 62 of the Slovenian Constitution. Despite its conformity with the Slovenian Constitution, Art. 8 CPA was amended in a way that for the most part conforms and in some ways even exceeds the demanded minimum standards set in the Directive.
One of the problems that can arise due to the unspecific wording of the Directive is determining which documents fall under the scope of the term ‘essential documents’. Art. 8 more specifically determines the documents as the indictment, summons to the court, all the decisions that deprive the accused or suspected of his freedom, judgments, decisions relating to the exclusion of evidence, exclusion of judges and dismissals of the suggested evidence. All these documents are considered essential for the suspected or accused person to efficiently defend himself and for the procedure to be aligned with the right to a fair trial. The court is additionally provided with an option to order that other documents need to be translated under specific circumstances.
Also added is a possibility of contesting the quality of the interpretation or translation or the manner in which they were made. However, it might sometimes be unclear, whether this appeal is to be made right after a certain translated document is served to the party or at the end of the proceeding and it is also quite hard for the suspected or accused to determine that the quality of the translation is not sufficient, since he obviously does not know the official language of the country. Perhaps that is the reason why these objections are rarely met in practice. Nonetheless, due to the possibility that such situations might occur, judges take some precautionary measures to ensure that there is some sort of verification procedure possible. There are two paths a judge might take: the statements given in the case are being written down as they are put into words or they are taped, translated and then written down already translated. Naturally, another court interpreter is used for checking the quality of the contested translation.
Regarding the mechanisms, required under the Directive, it must be stated that Slovenian regulation failed to establish a special mechanism for deciding whether an appointment of an interpreter is necessary upon informed discretion. Judicial authorities decide over the requests for interpretations and translations independently by applying the wording of Art. 8 to each specific case. Following ECtHR’s judgment in Cuscani v United Kingdom, Slovenian judges conduct a kind of colloquy with the defendant to personally determine the extent of his language ability. By doing so, the ‘burden of proof’ for denying the request for interpretation lies with the court. Perhaps that is the reason the judges usually grant these requests, but they also need to establish the barrier between the essential and non-essential documents by applying all the relevant provisions.
Under Art. 8(3) CPA persons may waive their right under certain conditions. The demand of putting this legal advice on the record shows us that CPA refers to the legal instruction made by the judge. The court, the judge itself, informs the suspected or accused of his rights and the requirement is considered fulfilled.
The amended provision still states that the translations are to be done by a court interpreter, but also provides for a possibility of no available interpreters for a certain language. The court can in these cases appoint another person, capable of translating into the language of the proceedings.
A directive with such an ambitious goal as to achieve trust among Member States is bound to run into some trouble when being interpreted. Slovenian provides the interpretation or translation of specifically determined documents and the option to waive the right, takes care of the quality and decides over the costs.
However, some issues are better taken care of than other. Current regulation sufficiently guards the quality of the translation or interpretation through the pertinent application of rules demanding quality work from a court expert and the rules that give the party a possibility to request exclusion of a judge. Based on some judges’ personal experiences in the courtroom it can also be stated that they are aware of the specific challenges and they are more than willing to lend a hand to the foreign parties in order to ensure the protection of their rights. However, one can also notice the fact that some of the provisions of the Directive do not have a correspondent in Slovenian national legislation. In this regard, some recommendations can be made. It would undoubtedly benefit the clarity of the whole proceedings, if the judges, who actually represent the “mechanism” required under the Directive, would be provided with at least some minimum linguistic training, which could improve their awareness of the linguistic difficulties and help them meaningfully assess the interpreter’s skills. Perhaps establishing some sort of a mechanism for deciding when the translation or interpretation is needed would also be recommendable, since the established system gives the criminal judge a high discretionary power on the one side and a big responsibility on the other side.
Under these circumstances it can be concluded that despite the noticed lacks and limitations an optimistic view of the national regulation can be shared – in Slovenia the matter is much more “open to interpretation” than “lost in translation”.