Based on the overall findings of this research and following the structure of the report, FRA has formulated opinions to offer concrete guidance on effectively protecting the procedural rights of suspected and accused persons in line with Directives 2010/64/EU and 2012/13/ EU, with a view to ensuring a fair trial.
Assessing the necessity of interpretation and translation more effectively
Most EU Member States’ systems generally lack detailed guidance on how to assess the need for interpretation and translation – for example, on how a competent authority should determine what minimum level of language knowledge a person should have to allow them to “fully” understand and follow criminal proceedings. Currently, the actual practices of different authorities can vary considerably
Guiding authorities on the importance of translating essential documents
Not all Member States’ legislation lists the essential documents for which written translations have to be provided to safeguard the fairness of proceedings – such as judgments, charges or indictments, and decisions depriving persons of their liberty. Where such lists do not exist, decisions on which documents have to be translated are largely made on a case-by-case basis. Practitioners also note that, in practice, authorities often provide oral rather than written translations of essential documents – particularly once someone is represented by a lawyer –due to time and budget constraints, among other reasons.
Ensuring that suspected or accused persons can effectively communicate with their legal counsel
FRA’s findings show that the extent to which interpretation is provided for communication between a suspected or accused person and their lawyer varies from state to state, and that several Member States have introduced specific limitations. For example, in some legal systems, interpretation services for communicating with legal counsel are provided for a limited length of time only, or only for specific types of procedural actions. In other Member States, interpretation for communication with legal counsel is made largely dependent on the provision of legal aid, or coverage of the costs of such interpretation is guaranteed only where interpreters are appointed by state authorities.
Safeguarding the confidentiality of communication between suspected or accused persons and their legal counsel
FRA’s findings show that using the same state-appointed interpreters to interpret both during police interrogations and communications between a defendant and their lawyer may present a conflict of interest. It may conflict with the principle of confidentiality of clientcounsel communications. While relying on interpreters, who the police or other criminal justice authorities regularly use, can be beneficial in terms of availability, speed, and knowledge of the procedures, they can be unsuitable for interpretation in a client-counsel relationship, unless strict quality safeguards are put in place.
Safeguarding the quality of interpretation and translation services
FRA’s research shows that some Member States have set up registers of legal interpreters and translators. However, the minimal qualifications needed to be included in such registers can vary broadly both among and within states. In addition, there are no common standards on how to establish an effective register – for example, whether it is better to have one central register or multiple registers; who should maintain the register(s); and what they/it should include. This means that Member States have very different systems. Some have very minimal requirements for admission to a register; others have no requirements at all. As a result, the quality of services provided varies considerably, even when registers contain officially qualified interpreters and translators.
Not all EU Member States have established registers of independent interpreters and translators, instead using alternative means to secure suitable legal interpreters or translators. In fact, given that interpreters and translators have to be secured for a number of languages, and often in unplanned, urgent circumstances, nearly all EU Member States have alternative means of securing interpretation and translation services – even in countries with official registers. These often take the form of, for example, alternative lists of interpreters and translators with more flexible minimum registration requirements than those applicable to official registers. These requirements are not always clearly set out or harmonised across the country, and are often very lenient. Codes of conduct or ethic codes developed by national associations of legal interpreters and translators are an example of a promising practice that helps protect the quality of interpretation and translation services.
Giving suspects and accused clear information about their rights
FRA’s findings show that, in EU Member States, information about rights is frequently provided by using language from the relevant national criminal law provisions. This is often overly legalistic, undermining the actual effectiveness of providing information. This applies to both information about rights provided to suspected or accused individuals who are not deprived of their liberty, as well as to arrested or detained individuals who have the right to receive such information via a written Letter of Rights pursuant to Directive 2012/13/EU.
Facilitating access to the materials of the case
FRA’s findings show that EU Member States have different approaches in terms of the extent to which they enable access to materials of the case during the various stages of proceedings, including how they use available grounds for refusing access. This is particularly the case during the early pre-trial phase, such as police questioning. In most Member States, individuals may incur some indirect costs when accessing case materials – for example, photocopying costs.
Taking into account particular needs of vulnerable suspects and accused persons more effectively
FRA’s findings show that most Member States’ laws contain general references to the needs of persons with disabilities and children. However, national legislators rarely introduce more detailed rules, and other policy documents provide little guidance on how to accommodate these needs. Examples of promising practices identified during this research include: transcribing written materials into braille for individuals with visual impairments; providing pre-prepared audio-files containing the text of the Letter of Rights; offering easyto-read versions of such letters and of other written information about rights; and using letters of rights that are specifically adapted for children.