in Translation: Language Rights for Defendants in European Criminal Proceedings
© Springer International Publishing Switzerland 2015
Stefano Ruggeri (ed.)Human Rights in European Criminal Law10.1007/978-3-319-12042-3_6Lost in Translation: Language Rights for Defendants in European Criminal Proceedings
(1)
Sussex Law School, University of Sussex, Falmer, Brighton, BN1 9QQ, UK
Abstract
This chapter examines the growing need for interpretation and translation in criminal proceedings and the emergence of new ideas about the communicative rights of defendants. It evaluates the case law of the European Court of Human Rights in this area, concluding that there have been significant advances in recent years in the protection of persons who are unable to speak the language of the country in which they have been arrested. Some important weaknesses remain, however, notably in respect of the translation of documents and the qualifications and independence of interpreters. The new regime under the European Union Directive 2010/64/EU on the Right to Interpretation and Translation in Criminal Proceedings is also considered. It is argued that, taken together, these two important initiatives represent a model for the establishment of more general European process rights.
Keywords
Case lawCommunicative rightsDirectivesEuropean Court of Human RightsEuropean UnionInterpretationTranslation1 Introduction
There are approximately 7,000 distinct languages spoken around the world, and over 260 of these are native to Europe. Taking into account the impact of inward migration, the number of spoken languages in our continent is much greater still, and the UK National Centre for Languages calculates, for example, that over 300 different languages can be heard in London alone.1 We may therefore consider our European Area of Freedom, Security and Justice,2 in which free movement is so warmly encouraged, as a linguistic Babel. These population movements also have profound implications for criminal justice, as criminological research from the 1920s Chicago School onwards has shown that mobile, displaced communities are statistically much more likely to be involved with the police.3 In the UK, 10 % of all criminal prosecutions and 20 % of all serious crime prosecutions for rape and murder involve non-nationals.4 More worryingly still, non-nationals comprise 12.6 % of the UK prison population, a figure that rises to 17.8 % in France, 26.7 % in Germany, 33.2 % in Spain and 35.6 % in Italy.5 Many of these non-nationals will have great difficulty in understanding the language of the country in which they are incarcerated. Peter Jan Honigsberg has argued that linguistic isolation in detention is a brutal form of solitary confinement with consequences that can amount, in some circumstances, to inhumane and degrading treatment or even torture. He compares the experience with that suffered by stroke victims.6 Such feelings can be even more terrifying in the phases of the criminal investigation and trial itself, where the consequences of a failure to understand the allegations and the process can be catastrophic, a horror recalling the imagined scenarios of authors such as Kafka or Koestler.7
Dramatic increases in global mobility and the advent of the International Criminal Trials since the 1990s8 have contributed to a growing awareness of the importance of communicative rights in criminal justice. This awareness has been reinforced in the same period by the work of Sociolinguist activists, such as Skutnabb-Kangas9 and Paulston,10 who have championed language rights as general human rights. The criminal trial is an act of communication, and some scholars have argued that communicative rights in the face of state authority comprise an important new and hitherto undeveloped terrain for human rights protection.11 Namakula has situated language and communication guarantees at the heart of the right to fair trial,12 while Abayesekara has pointed out the chronic difficulties of providing accurate interpretation and translation in the highly technical area of law.13
An emerging realisation of the scale of the problem has resulted in some significant developments in Europe14 in recent years, with enormous significance for marginal and displaced migrant populations. The first is the increasingly robust case law of the European Court of Human Rights (ECtHR), which in decisions such as Cuscani v United Kingdom in 2002 and Şaman v. Turkey in 2011 has begun to establish the parameters of a universal communicative right as an aspect of a fair trial just as, in cases such as Salduz v Turkey 15 and Panovits v Cyprus 16 in 2008, it is developing the parallel right to legal assistance.17 This jurisprudence was highly influential in the creation by the European Union (EU) of Directive 2010/64/EU on the Right to Interpretation and Translation in Criminal Proceedings. The Directive has been described by Hodgson as “a landmark, as the first criminal justice measure to be adopted by the co-decision procedure and the first to address safeguards for the accused”.18 Although, as will be argued below, there are serious defects in the protections offered by both the ECtHR jurisprudence and the EU Directive, nevertheless, taken together, they constitute nothing less than a breakthrough, not just in communication rights but also in wider attempts to establish baseline fair trial rights across Europe. For the first time, we can witness the spectacle of the ECtHR and the EU working together to provide agreed pan-European guidelines that are protective of the rights of defendants in the criminal process.
2 The Right to Interpretation/Translation under the European Convention on Human Rights (ECHR)
The right to interpretation/translation appears in two Articles of the European Convention on Human Rights19 once in relation to detention in Article 5 and once in relation to fair trial rights in Article 6. Under Article 5(2):
Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
Under Article 6(3):
Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; … (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court….
These are, of course, minimum rights, and the ECtHR has elaborated this framework into a much more comprehensive provision, addressing questions that include, who exactly is entitled to interpretation help? which are the phases of the proceedings where an interpreter is required? and does this help extend to the translation of documents? Finally, questions of the adequacy of interpretation and translation and its funding have been considered. In evaluating the effectiveness of the ECtHR case law in this area, it will be helpful to consider these issues in turn.
3 Who is Entitled to Interpretation Assistance?
The answer to this first question is entirely dependent on an accurate assessment of the specific language skills of the defendant, who may be reluctant to reveal his or her level of language competency or to speak at all. This is always a subjective and probabilistic judgement, reached by unqualified individuals, often without guidance and under difficult and pressured circumstances. In Ladent v Poland, there was a breach of Article 5(2) when a French national, albeit travelling with his Polish wife, was informed of the reasons for his arrest and the charges against him in Polish, whereas the authorities clearly knew, because they had served translated papers on him after his release, that he spoke only French.20 However, there was no breach in Galliani v Romania where the Italian defendant in a deportation case, although by no means fluent, “could engage in dialogue with the police officers and had no difficulty in understanding what was said to her and expected from her”.21
The defendant’s own declarations on the subject may be highly relevant. In 1975, Mr. Brozikec, a Czech national, tore down some flags erected for a political party event in Pietra Ligure. He was investigated by the local police who sent him a judicial notice in Italian to which he replied (in French):
I have always expressly requested that either the mother tongue of the persons concerned or one of the international official languages of the United Nations be used, in order to avoid from the outset any risk of misunderstanding.22
The Italian authorities ignored this letter and carried on to judgement in Italian, asserting that, in their belief, Mr. Brozikec actually spoke Italian. The ECtHR found that they should have provided interpretation
unless they were in a position to establish that the applicant in fact had sufficient knowledge of Italian to understand from the notification the purport of the letter notifying him of the charges brought against him.23
In other words, the burden of proving that an interpreter is needed falls on the prosecuting authority (once they are alerted to a problem) and not on the defendant, notwithstanding that this appears to be the reverse of the practice in many European states, including Italy.24
Haphazard arrangements that may seem appropriate at the time in the interests of expediency may prove to be inadequate. Mr Cuscani, a Sicilian, opened an Italian restaurant in Newcastle, which he named, perhaps rashly, “The Godfather”. Such bravado may have proved irresistible to the tax authorities who eventually charged him with tax fraud.25 At the trial, for the first time, his counsel pointed out that he could manage only very simple concepts in English and even his Italian was “very southern”. Rather than adjourning the case to find a qualified interpreter, the judge acceded to counsel’s proposal that Mr. Cuscani’s brother, present in court and of unspecified ability as an interpreter, should translate the proceedings. Mr Cuscani was duly sentenced to 4 years of imprisonment. The ECtHR concluded:
The onus was thus on the judge to reassure himself that the absence of an interpreter at the hearing … would not prejudice the applicant’s full involvement in a matter of crucial importance for him. In the circumstances of the instant case, that requirement cannot be said to have been satisfied by leaving it to the applicant, and without the judge having consulted the latter, to invoke the untested language skills of his brother.26
It would be otherwise where a defendant had specifically waived the right of interpretation,27 but the waiver had to be clear and unequivocal and ideally in writing.28 Otherwise, the domestic court has the responsibility itself to establish whether the defendant has an adequate level of linguistic competency—a task that a judge may be ill-equipped to perform, and in any event there are no clear guidelines established by the ECtHR. However, as emphasised by the Court in Hermi v Italy:
… while it is true that the conduct of the defence is essentially a matter between the defendant and his counsel, … the ultimate guardians of the fairness of the proceedings – encompassing, among other aspects, the possible absence of translation or interpretation for a non-national defendant – are the domestic courts.29
How they are expected to carry out such a technical and onerous task as assessing language competency is not made clear. In Sandel v. the former Yugoslav Republic of Macedonia, the applicant in a fraud case had insisted on a Hebrew interpreter, and as the rules of the court required all interpreters to be Macedonian nationals, proceedings were delayed for several years while one was sought. However, although this delay was clearly a breach of Article 6(1) for which the domestic court was responsible,30 there was no breach of the interpretation requirement in Article 6(3) since it was clear from the start that the applicant had a working, if not a perfect, knowledge of Serbian, English and Bulgarian, for which interpreters were readily available.31
4 When is Interpretation Assistance Available?
Despite the wording of Article 6(3), which refers specifically to an inability to understand the “language used in court”, protection has been specifically extended to all phases of the procedure, and especially the pre-trial. In Şaman v. Turkey, an illiterate Kurdish-speaking woman with a very limited command of Turkish, who had been found in possession of false identity documents in Turkey was convicted and sentenced to 12 years and 6 months for membership of the PKK.32 She had been assisted by a lawyer and interpreter at court but not at the police station where complex matters had been put to her. The court found that “the issue of the defendant’s linguistic knowledge is vital” and the authorities have an obligation to assess whether the case is sufficiently complex to require a detailed knowledge of the language used. Here there was a clear breach of Article 6(3). An interpreter should always be provided in the investigation stage for a defendant with language difficulties unless there were compelling reasons not to do so,33 a point that had been forcefully made in the case of Diallo v Sweden, the year before.34
In Amer v Turkey, a Sudanese-Bulgarian national was able to speak in Turkish but couldn’t read text. Thus, although he could respond effectively in a police interview, he was unable to read a statement that he was given to check and sign. As the ECtHR emphasised:
the right guaranteed by Article 6 § 3 (e) of the Convention to the free assistance of an interpreter is not only applicable when making oral statements at hearings in the course of a trial, but also to documentary material and the pre-trial proceedings.35
5 The Translation of Documents
The availability of translation for documents presents a further problem. It would clearly defeat the intentions of Article 6(3) if the words “free assistance of an interpreter” were construed so as to exclude the translation of documents. In those circumstances, a defendant in a primarily written procedure would be at a considerable disadvantage compared with one where the evidence was mostly oral. This principle was stated most clearly in the case of Kamasinski v Austria, where a US citizen went to trial without having a translation of the indictment or pre-trial witness statements. Moreover, the final judgement in the case was also not fully translated at any time, even after the event. The ECtHR took the opportunity to insist unequivocally that Article 6(3) applied not only to oral statements made at the trial hearing but also to documentary material.36 This does not mean that every piece of writing must be translated, but there should be sufficient documents “to enable the defendant to have knowledge of the case against him and to defend himself, notably by being able to put before the court his version of the events”.37 The list of such documents may or may not include the indictment and the judgement, depending on the circumstances. Sometimes an oral translation or summary will be adequate, as in Vikoulov v Latvia, where it was held that this provided sufficient information to enable a detention order to be appealed.38
This point of view was also emphasised in the decision in the case of Husain v Italy, which arose out of the Achille Lauro hijacking. Here the applicant had been tried in absentia, and on his final transfer to Italy he was given a copy of his committal order that was written only in Italian, which he, as an Arabic speaker, wasn’t able to understand. It was orally translated at the time, but
he had just been transferred to Italy from a foreign prison and was in no condition to pay attention to the interpreter’s words or to understand their technical meaning. He stressed that he was unfamiliar with the complexities of the Italian legal system and had believed the committal warrant to be a list of offences and statutory provisions.39
Nevertheless, it was held, somewhat harshly, that “oral linguistic assistance may satisfy the requirements of the Convention”40 and that the complaint was in this case manifestly ill-founded.
Whether or not documents must be translated will depend critically on the complexity of the case. In Herni v Italy, which involved a French and Arabic speaker who nevertheless understood spoken Italian and who was accused of drug dealing, the Lower Chamber pointed out:
It has not been established, either, whether and to what extent the applicant understood Italian and was capable of grasping the meaning of a legal document of some complexity. In that context, the financial, social and cultural situation of the person concerned, and the language difficulties likely to be encountered in a foreign country, are of relevance….41
Such an assessment has to be made on a case-by-case basis, a point underlined by the fact that whereas the Lower Chamber found that there had been a breach of Article 6(3), the Grand Chamber took a different view.42