sou · H0B349 · 2012-08-21 00:00:00 — I detta hänseende kan förslagen också antas bidra till uppfyllandet av de integrationspolitiska målen om lika rättigheter och möjligheter för alla oavsett etnisk och kulturell bakgrund. När det gäller de kostnadsmässiga effekterna av utredningens förslag är dessa mycket svårbedömda eftersom utredningen öppnar möjligheter som det sedan är upp till berörda myndigheter och parter att utnyttja. I vilken takt och i vilken utsträckning de föreslagna reformerna kommer att anammas i den praktiska rättstillämpningen är svårt att bedöma på detta stadium. Det står dock klart att reformen kommer att innebära kostnadsökningar för staten. Utredningens förslag innebär att fler handlingar än kommer att skriftligen översättas från svenska till ett annat språk, vilket kommer att innebära kostnadsökningar. Förslagen medför också att mer kvalificerade och därmed dyrare tolkar bör komma att anlitas, vilket innebär en viss merkostnad. Tolkar förväntas också bli anlitade i större utsträckning än genom möjligheten till en muntlig översättning i stället för en skriftlig översättning, vilket också innebär ökade kostnader. Förslagen kan förväntas medföra en viss ökning av antalet överprövningar hos och samt fler förfrågningar hos domstolarna om prövning gällande brister i förundersökningen enligt 23 kap. 19 § . Om en utbyggnad av videokonferenssystemet genomförs kommer detta också att innebära initiala investeringskostnader. kommer detta dock innebära besparingar i form av minskade kostnader för tolkars ersättning för resa och tidsspillan. Utredningens förslag om tystnadsplikt för vissa tolkar och översättare utvidgar det kriminaliserade området för brott mot tystnadsplikten. Förslaget antas emellertid inte leda till någon effekt på brottsligheten eller kostnader med anledning av detta. De nya bestämmelserna föreslås träda i kraft . Greater cross-border mobility and increased immigration has produced a Swedish society characterised by cultural, ethnic and religious diversity. From having been primarily a monolingual country, more than 150 different languages are spoken in today. Even though many people are multilingual and have a very good command of the Swedish language, there is still a large number of people who, in various contexts, may have need for interpretation or translation to understand or to make themselves understood. Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings was adopted in October 2010. The Directive contains minimum rules that are to guarantee the rights of suspected or accused persons to interpretation and translation of documents in criminal proceedings. The Directive is to be transposed into national law by 27 October 2013. The Inquiry was tasked with determining how the EU Directive is to be transposed into Swedish law. The remit has included analysing how Swedish law relates to the Directive and assessing the need for legislative amendments and other measures. The Inquiry was also instructed to propose the legislative amendments and other measures necessary to transpose the Directive. The Directive establishes provisions on the rights of suspected and accused persons to interpretation and translation in criminal proceedings and proceedings for the execution of a European arrest warrant. The term criminal proceedings is not defined in the Directive. The Inquiry has therefore interpreted the term on the basis of generally accepted definitions in the field of criminal law and in accordance with the way Swedish law in the area is organised. The Inquiry has made the assessment that all proceedings that can result in a criminal sanction should be considered criminal proceedings. However, actions under administrative law that can be a consequence of a criminal act are not covered. This means that matters concerning driving licences, tax surcharges, customs surcharges, environmental fines and the like are not covered by the Directive. The scope of the Directive is restricted so that the rights only concern people suspected or accused of committing a crime. Accordingly, other people who may figure in a criminal case, such as witnesses or injured parties, are not covered by the Directive. The provisions on the right to interpretation and translation are applicable from the time of notification of reasonable suspicion pursuant to Chapter 23, Section 18 of the Swedish Code of Judicial Procedure until such time as the criminal proceedings are concluded in their entirety, i.e. by means of a decision on such matters as discontinuation of a preliminary investigation, or via a judgment or decision in the highest possible domestic court. The Directives provisions are not to be applied with regard to sanctions for minor offences that can be determined by an authority other than a court. As regards , summary imposition of breach-of-regulations fines or summary monetary penalties are therefore exempted if the sanction determined is only a fine. This indicates that the Directive is to be applied to the imposition of sanctions regarding conditional sentences. A new provision regulating this will be introduced into Chapter 48 of the Swedish Code of Judicial Procedure. Should an appeal concerning annulment of breach-of-regulations fines or summary monetary penalties be lodged with a court, the Directive is to be applied. Mandatory rules on the right to interpretation introduced According to the Directive, suspected or accused persons who do not speak or understand the language of the proceedings are to be provided with interpretation without delay during the criminal proceedings. Chapter 5, Sections 6–8 of the Swedish Code of Judicial Procedure contain provisions on interpretation at court hearings. These provisions are applicable for both civil and criminal cases. Chapter 5, Section 6 of the Swedish Code of Judicial Procedure prescribes that an interpreter may be engaged to assist the court if a party, witness, or any other person who shall be heard by the court is incapable of understanding and speaking Swedish. There is no explicit provision on interpretation regarding preliminary investigations. However, the rules on interpretation in Chapter 5 of the Swedish Code of Judicial Procedure have been considered to apply by analogy during preliminary investigations. The provisions of the Swedish Code of Judicial Procedure regarding interpretation are thus optional, i.e. the court is not required to, but may engage an interpreter. However, the Inquiry has learned that in practice, this rule is applied as a mandatory rule, i.e. if a suspected or accused person does not have a command of Swedish, an interpreter must be engaged. While the provision, in reality, is often applied as a mandatory rule, the Inquiry considers that the provision needs to be tightened up for the Directives requirements to be fulfilled. The Inquiry proposes that the current regulation be clarified by explicitly stating that interpretation must be provided to suspected or accused persons who do not have a command of Swedish. A new second paragraph in Chapter 5, Section 6 of the Swedish Code of Judicial Procedure regulating this situation will therefore be introduced. Under the first paragraph – which henceforth will only regulate interpretation in civil cases and interpretation for other people who are heard in criminal cases – an interpreter may be engaged when necessary. The Inquiry further proposes that the right to interpretation during preliminary investigations be regulated in law and introduced in Chapter 23 of the Swedish Code of Judicial Procedure. The new paragraph will refer to the provisions on interpretation in the fifth chapter of the Swedish Code of Judicial Procedure. Under the new provision, the right to an interpreter is to apply from the time a suspected person is notified of suspicion of a crime under Chapter 23, Section 18 of the Swedish Code of Judicial Procedure and thereafter throughout the entire proceedings of the prelimnary investigation. Under the Directive, the right to interpretation also includes appropriate assistance for persons with hearing or speech impedements. Chapter 5, Section 6, third paragraph of the Swedish Code of Judicial Procedure contains provisions on interpretation for persons with serious hearing or speech impediments. In practice, this provision means that the stipulations in the Directive concerning these people are fulfilled, since the provision not only applies to those who completely lack the ability to hear or speak, but also those who, due to a minor hearing or speech impediment, cannot be examined without an interpreter. However, the Inquiry considers that the current wording serious hearing or speaking impediment does not completely correspond to the Directives requirements and the way the provision, according to the reasoning, is intended to be applied in practice. For this reason, it is proposed that the terminology be changed so that the provisions on the right to an interpreter apply to a person who has a hearing or speech impediment. The Directive contains provisions on the right to translation of documents. Suspected or accused persons who do not understand or speak the language of the proceedings are, within a reasonable period of time, to receive a written translation of such documents that are essential to ensure that they can exercise their right to defence and to safeguard the fairness of the criminal proceedings. Examples of essential documents include any decision depriving a person of his , any charge or indictment, and any judgment. Regarding other documents, the competent authority is to decide whether a document is essential or not on a case-by-case basis. However, the right to translation does not mean that there is an obligation to translate passages of essential documents which are not relevant for the purposes of enabling suspected or accused persons to have knowledge of the case against them. Furthermore, an oral translation or oral summary may be provided instead of a written translation on condition that this does not prejudice the fairness of the proceedings. Chapter 33, Section 9 of the Swedish Code of Judicial Procedure regulates translation at courts. There is no explicit provision concerning the obligation of the or prosecution authorities1 1 For reason dealing with presentation, the Inquiry has chosen to only mention the authorities and the Swedish Prosecution Authority in the text since these are the main authorities involved in preliminary investigations. There are, however, other authorities that, to translate documents during a preliminary investigation. Chapter 33, Section 9 of the Swedish Code of Judicial Procedure states that if required, the court may provide for the translation of documents filed with or dispatched from the court. This rule is thus not mandatory and applies to both civil and criminal cases. Therefore, to fulfil the requirements of the Directive, special provisions regarding translation must be introduced. The Inquiry proposes that a new second paragraph of Chapter 33, Section 9 of the Swedish Code of Judicial Procedure be introduced that is to apply to a suspected or accused persons right to translation of documents in criminal cases. It is also proposed that the right to translation during a preliminary investigation be regulated in law by introducing a provision in Chapter 23 of the Swedish Code of Judicial Procedure that refers to Chapter 33, Section 9 of the same Code. The new provisions primarily involve the following. If a suspected or accused person submits a request to the , a prosecutor or a court, or if for some other reason it is necessary, a written translation is to be made of such documents, or parts of such documents, that are essential for the suspected or accused person to be able to defend him or herself. In this context, the opportunity to defend oneself is to be viewed in a broad sense, such as being able to understand and answer all accusations, assertions or claims that may be presented or taken in criminal proceedings. Thus under the general rule, the suspected or accused person is to request a translation and, in connection with this, state what he or she wants to have translated. However, there are certain situations where a request should not normally be necessary and where it is natural for the judicial authorities to instead offer a written or oral translation. An example of such a situation – when it is otherwise necessary – is the final service of documents of a preliminary investigation where the suspected person is deprived of . Instead of a written translation, an oral translation or an oral summary may be provided if such is not inappropriate with consideration to the nature of the case or document, or some other within their areas, conduct preliminary investigation activities and are thus also affected by the Directive. Examples of such authorities are Swedish Customs, the (tax fraud units), the and the Swedish Guard. Naturally, the provisions concerning the Swedish Prosecution Authority also apply to the Swedish Economic Crime Authority. Normally, it should be possible to translate most documents orally rather than in written form. However, oral translations cannot always replace written translations. Certain documents in an investigation may be difficult to assimilate if they are not translated in written form, such as documents with complicated financial or technical facts. Furthermore, the suspected offence or the case may be of such a serious or special nature that an oral translation of a certain document may be considered inappropriate. Other circumstances as well, such as the personal situation of the suspected or accused person, may provide a reason as to why a certain document should not be orally translated. Quality requirements for interpretation and translation raised Under the Directive, the interpretation or translation provided is to be of sufficiently high quality to safeguard the fairness of the proceedings, particularly by ensuring that suspected or accused persons understand what they are accused of and can exercise their right to defence. Under the current system, interpreters and translators can become authorised by the Legal, Financial and by taking certain examinations. Authorised interpreters and translators are also under the supervision of the Legal, Financial and . This system provides a guarantee that those interpreters and translators who are authorised maintain a high standard. Despite measures taken in recent years, there are currently still too few authorised interpreters and translators in certain languages. Furthermore, to truly achieve a satisfactory quality of interpretation in the judicial system, more court interpreters are needed. Regarding interpreters, current regulations only stipulate that those who are engaged are to be suitable for the task. There are no regulations concerning translators. To assure quality and encourage more interpreters and translators to improve their skills, the Inquiry therefore proposes introducing special regulations specifying the skills that primarily are to apply for interpretation and translation. Regarding interpreters, a new provision will be introduced in Chapter 5, Section 6 of the Swedish Code of Judicial Procedure stating that if possible, a court interpreter or other authorised interpreter is to be engaged. Only if an interpreter with these qualifications is not available may another suitable person be appointed. Regarding translation, a provision will be introduced in Chapter 33, Section 9 of the Swedish Code of Judicial Procedure stating that when possible, an authorised translator is to be engaged. If an authorised translator is not available, another suitable translator may be engaged. Access to competent interpreters is largely a question geographical location. It can be difficult to obtain a qualified interpreter outside the large cities, and the costs of having an interpreter on site can be considerable if long commuting distances are involved. Video conference interpretation can be one way of dealing with this. In addition, video conference interpretation should, whenever possible, replace telephone interpretation since the quality of video conference interpretation is considerably better compared with telephone interpretation. However, making greater use of video conference interpretation requires that the actors involved have this technology in place. The Swedish Courts have video conference systems in place at all general courts, but since the technology is frequently used there is often a shortage of rooms with video conference equipment. There is a general lack of access to video conference systems at the authorities. Video conference technology should therefore be expanded at the relevant authorities. When undertaking such an expansion, the equipment should be adapted to video conference interpretation. The Directive also sets requirements on training regarding the special situation that exists when interpreting for judicial staff. and prosecution authorities provide training that incorporates these elements by including them in interrogation technique training. As regards the courts, the does not currently provide training in interpretation issues. However, this does not mean that individual courts do not organise training courses on their own. According to the , one aspect included in the training for assistant judges in autumn will be matters that a judge must consider when an interpreter appears in court. The Courts of is also considering a more systematic training course in interpretation issues for assistant judges, beginning in spring . Accordingly, even though some training measures regarding interpretation exist or are planned, the Inquiry considers that it may be necessary to review these measures to ensure that the requirements of the Directive are fully met. The Inquiry therefore proposes that the issue of training courses in this area be highlighted in the Governments management of the authorities by such means as appropriation directions or in some other appropriate . Existing possibilities to appeal decisions regarding interpretation or translation adequate Under the Directive, Member States shall ensure that, in accordance with procedures in national law, suspected or accused persons have the right to challenge a decision finding that there is no need for interpretation or translation of documents or passages of documents. Furthermore, when interpretation or translation has been provided, suspected or accused persons shall have the possibility to complain that the quality of the interpretation or translation is not sufficient to safeguard the fairness of the proceedings. If circumstances arise during an ongoing preliminary investigation or trial to indicate that the interpretation or translation is not correct, the relevant authority can, naturally, voluntarily replace the interpreter or order a new translation. This, in practice, is the most common way to resolve interpretation or translation problems. An appeal procedure only comes into question if the authority decides not to comply with a complaint. Current regulations regarding preliminary investigations allow requesting a review of a prosecutors decision. Such a review is usually carried out by a Director of Public Prosecution or a Deputy Director of Public Prosecution. Besides the right to a review, there is also a possibility to request the court to consider any shortcomings in the preliminary investigation in accordance with Chapter 23, Section 19 of the Swedish Code of Judicial Procedure. Decisions concerning interpretation or translation taken by a court can be appealed against in connection with an appeal of a judgment or final decision. Concerning a complaint regarding interpretation or translation, the higher court is to examine whether a decision or procedure in the lower court has resulted in a If such is the case, it may be necessary to set aside the judgment or decision and remand the case to the lower court for a new examination, or alternatively to redress the procedural error in the higher court. The Inquiry considers that the arrangement described above is sufficient to fulfil the requirements of the Directive. There is therefore no need for a legislative amendment. No repayment obligation for interpreter or translation costs for accused persons who are convicted of a criminal offence The Directive prescribes that Member States are to meet the costs of interpretation and translation irrespective of the outcome of the proceedings. Accordingly, the suspected or accused person cannot be ordered to repay the costs of interpretation and translation even if he or she is later convicted of the offence. Under current regulations, the costs of interpretation and translation incurred through instructions of the , prosecutor or court are paid by the state. No repayment obligation for these costs is imposed on a suspected or accused person. Accordingly, the current regulations fulfil the requirements of the Directive in this respect. Regarding expenses for interpretation or translation incurred by a public defence counsel, current regulations state that an accused person who is convicted of an offence can be ordered to compensate these expenses. Therefore, to fulfil the requirements of the Directive, Chapter 31, Section 1, second paragraph of the Swedish Code of Judicial Procedure must be amended so that it explicitly states that the obligation of the convicted person to pay does not cover costs of interpretation or translation. Expanded rules concerning confidentiality and secrecy for certain interpreters and translators Under the Directive, Member States are to ensure that interpreters and translators observe confidentiality regarding the interpretation and translation provided. Interpreters and translators engaged by the , prosecutors or courts are covered by the Public Access to Information and Secrecy Act (2009:400) and therefore have the same duty of confidentiality as a public authority or an official. Even authorised interpreters and translators engaged by actors other than public authorities are covered by confidentiality under the Act on confidentiality for certain interpreters and translators (1975:689). The requirement in the Directive concerning confidentiality is thus met in these respects and there is therefore no need for legislative amendments in this area. However, there are no provisions concerning confidentiality for non-authorised interpreters and translators engaged by actors other than a public authority, such as defence counsels. The In- quiry therefore proposes that a provision be introduced in the Act on confidentiality for certain interpreters and translators so that this Act also applies to other interpreters and translators who are professionally engaged in connection with criminal proceedings. Consequences and entry into force The Inquirys proposals entail greater opportunities for a suspected or accused person who does not have a command of Swedish to have documents translated into his or her mother tongue. These proposals also mean that the quality requirements are raised as regards both interpretation and translation. It can therefore be assumed that the proposals will result in fewer erroneous judgments and thus increased legal security and confidence in the judicial system. In this respect, the proposals can also be expected to contribute to meeting the integration policy objectives of equal rights and opportunities for everyone regardless of ethnic or cultural background. The cost-related impact of the Inquirys proposals is very difficult to assess since the Inquiry opens up opportunities that are subsequently up to the relevant authorities and parties to use.