62022CJ0242_RES
Case C‑242/22 PPU
TL
v
Ministério Público
Judgment of the Court (First Chamber), 1 August 2022
(Reference for a preliminary ruling – Urgent preliminary ruling procedure – Judicial cooperation in criminal matters – Directive 2010/64/EU – Right to interpretation and translation – Article 2(1) and Article 3(1) – Concept of an ‘essential document’ – Directive 2012/13/EU – Right to information in criminal proceedings – Article 3(1)(d) – Scope – Not implemented in domestic law – Direct effect – Charter of Fundamental Rights of the European Union – Article 47 and Article 48(2) – European Convention for the Protection of Human Rights and Fundamental Freedoms – Article 6 – Suspended prison sentence with probation – Breach of the probation conditions – Failure to translate an essential document and absence of an interpreter when that document was being drawn up – Revocation of the suspension of the prison sentence – Failure to translate the procedural acts relating to that revocation – Consequences for the validity of that revocation – Procedural defect resulting in relative nullity)
Fundamental rights – Right to fair legal process – Rights of the defence – Enshrined, respectively, in Article 47 and Article 48(2) of the Charter of Fundamental Rights and in Article 6(1) and Article 6(2) and (3) of the European Convention on Human Rights – Identical meaning and scope
(Art. 6(1), third subpara., TEU; Charter of Fundamental Rights of the European Union, Arts 47, 48(2) and 52(3) and (7))
(see paragraph 39)
Judicial cooperation in criminal matters – Right to interpretation and translation in criminal proceedings – Directive 2010/64 – Right to translation of essential documents – Concept of an essential document – Declaration of identity and residence used in the context of the criminal procedure in order to communicate to the person concerned the information relating to his or her residence obligations – Included
(European Parliament and Council Directive 2010/64, recitals 14, 17 and 22 and Art. 3(1) to (3))
(see paragraphs 58-60)
Judicial cooperation in criminal matters – Right to interpretation and translation in criminal proceedings – Directive 2010/64 – Right to information in criminal proceedings – Directive 2012/13 – Scope – Procedural acts relating to the revocation of the suspension of a prison sentence – Included
(Charter of Fundamental Rights of the European Union, Arts 47 and 48(2); European Parliament and Council Directives 2010/64 and 2012/13)
(see paragraphs 64-67)
Judicial cooperation in criminal matters – Right to interpretation and translation in criminal proceedings – Directive 2010/64 – Right to information in criminal proceedings – Directive 2012/13 – Right to interpretation – Right to translation of essential documents – Right to be informed of those rights to interpretation and to translation – Obligation for the beneficiary of those rights to invoke their infringement within a prescribed period, failing which that challenge will be time-barred – Beginning of that period before the person concerned has been informed, in a language which he or she speaks or understands of the existence and scope of his or her right to interpretation and translation and of the existence and content of the essential document in question – Precluded
(Charter of Fundamental Rights of the European Union, Arts 47 and 48(2); European Parliament and Council Directive 2010/64, Arts 2(1) and 3(1); and European Parliament and Council Directive 2012/13, Art. 3(1)(d))
(see paragraphs 78, 79, 80, 82, 83, 89, operative part)
Résumé
In 2019, TL, a Moldovan national who does not have a command of the Portuguese language, was sentenced in Portugal to a period of imprisonment, suspended with probation. At the time he was placed under judicial investigation, TL was subject to the coercive measure provided for in the Portuguese Code of Criminal Procedure which consists of a declaration of identity and residence (‘the DIR’) (
1
) and which is accompanied by a series of obligations, including that of informing the authorities of any change of residence. TL was not assisted by an interpreter when the DIR was drawn up, nor was that document translated into a language he speaks or understands. With a view to implementing the probation scheme, the competent authorities tried unsuccessfully to contact TL at the address indicated in the DIR.
On 7 January 2021, the court that sentenced TL issued an order summoning him to appear in court to be heard in respect of his failure to comply with the conditions of the probation scheme. The notifications of that order were made in Portuguese, at the address indicated in the DIR.
Since TL did not appear on the date indicated, that court revoked, by order of 9 June 2021, the suspension of the prison sentence. That order was also notified in Portuguese, at the address indicated in the DIR. Subsequently, TL was arrested at another address and imprisoned in order to serve his sentence.
In November 2021, TL brought an action seeking a declaration that the DIR and the orders relating to the revocation of the suspension of his sentence were invalid. He claimed that he could not have been contacted at the address indicated in the DIR due to a change of residence. He did not notify that change of residence because he was not aware of the obligation to do so, since he had not been provided with an interpreter when the DIR was drawn up or with a translation of that document into a language he spoke or understood. Furthermore, neither the order of 7 January 2021 nor that of 9 June 2021 were translated into such a language.
The court of first instance dismissed that action, on the ground that, although those procedural defects concerning translation and interpretation were established, they had been rectified, since TL had not invoked them within the prescribed periods. (
2
) The referring court, hearing an appeal against that decision, has doubts as to whether such a procedural provision is compatible with, inter alia, Directives 2010/64 (
3
) and 2012/13. (
4
)
In the context of the urgent preliminary ruling procedure, the Court of Justice holds that those directives, read in the light of the fundamental rights to a fair trial and to respect for the rights of the defence, (
5
) and the principle of effectiveness, preclude national legislation under which infringement of the rights to information, interpretation and translation provided for by those directives must be invoked by the beneficiary of those rights within a prescribed period, failing which that challenge will be time-barred, where that period begins to run before the person concerned has been informed, in a language which he or she speaks or understands, first, of the existence and scope of his or her right to interpretation and translation and, secondly, of the existence and content of the essential document in question and the effects thereof.
Findings of the Court
The Court examines the question referred in the light of Articles 2(1) (
6
) and Article 3(1) (
7
) of Directive 2010/64 and Article 3(1)(d) (
8
) of Directive 2012/13, read in the light of Article 47 and Article 48(2) of the Charter. These provisions give specific expression to the fundamental rights to a fair trial and to respect for the rights of the defence.
In the first place, even if these provisions have not been transposed or have not been fully transposed into the national legal system, individuals may rely on the rights arising from these provisions, since they have direct effect. Those provisions state, in a precise and unconditional manner, the content and scope of the rights of every suspected or accused person to receive interpretation services and the translation of essential documents, and to be informed of those rights.
In the second place, as regards a possible infringement of those provisions in the present case, the Court finds that the three procedural acts at issue, namely the DIR, the order of 7 January 2021 summoning TL to appear and the order of 9 June 2021 revoking the suspension of the prison sentence, fall within the scope of Directives 2010/64 and 2012/13 and constitute essential documents of which a written translation should have been provided. In particular, the translation of the DIR into a language understood or spoken by TL would have been essential, since the breaches of the obligations set out in that document indirectly led to the revocation of the suspended prison sentence imposed on him.
In that respect, the application of these directives to a procedural act, the content of which determines the maintenance or revocation of a suspended sentence of imprisonment, is necessary in the light of the objective of these directives to ensure respect for the right to a fair trial, as enshrined in Article 47 of the Charter, and respect for the rights of the defence, as guaranteed by Article 48(2) of the Charter. Those fundamental rights would be infringed if a person who has been sentenced to a suspended term of imprisonment were unable to ascertain – because of the failure to translate that act or the absence of an interpreter when it was drawn up – the consequences of failing to comply with the obligations imposed on him or her by that act.
In the third place, as regards the consequences of an infringement of the rights in question, Directives 2010/64 and 2012/13 do not set out the detailed rules for the implementation of the rights which they lay down. Accordingly, those rules are a matter for the domestic legal system of the Member States in accordance with the principle of procedural autonomy, provided that they comply with the principle of equivalence and the principle of effectiveness.
As regards the principle of effectiveness, the rules laid down in national law cannot undermine the objective of these directives. First, the obligation to inform suspects and accused persons of their rights to interpretation and translation is of essential importance in order effectively to guarantee those rights. Without that information, the person concerned could not know the existence and scope of these rights or demand that they be respected. Thus, to require the person concerned by criminal proceedings conducted in a language which he or she does not speak or understand to plead that he or she has not been informed of his or her rights to interpretation and translation within a prescribed period, failing which that challenge will be time-barred, would have the effect of rendering meaningless the right to be informed and would consequently undermine that person’s rights to a fair trial and to respect for the rights of the defence. That conclusion also applies, as regards the rights to interpretation and translation, where the person concerned has not been informed of the existence and scope of those rights.
Secondly, even where the person concerned has actually received that information in good time, it is also necessary that he or she be aware of the existence and content of the essential document in question and of the effects arising from it, in order to be able to invoke an infringement of his or her right to the translation of that document or of his or her right to the assistance of an interpreter when that document is being drawn up.
Accordingly, the principle of effectiveness would be undermined if the period in which, under a national procedural provision, an infringement of the rights granted by Directives 2010/64 and 2012/13 may be invoked began to run before the person concerned has been informed, in a language which he or she speaks or understands, first, of the existence and scope of his or her right to interpretation and translation and, secondly, of the existence and content of the essential document in question as well as its effects.
(
1
)	A DIR is established for every person under investigation. It contains that person’s place of residence, place of work or any other address of that person and indicates that certain information and obligations have been communicated to him or her, such as the obligation not to change residence without notifying the new address.
(
2
)	Under Article 120 of the Código do Processo Penal (Code of Criminal Procedure), nullities such as the failure to appoint an interpreter must be invoked within prescribed periods, failing which the challenge will be time-barred. Thus, in the case of the nullity of an act drawn up in the presence of the person concerned, the nullity must be invoked before the finalisation of that act. According to the Portuguese Government, that article is also applicable to the invocation of defects arising from the infringement of the right to translation of essential documents in criminal proceedings.
(
3
)	Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings (OJ 2010 L 280, p. 1).
(
4
)	Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (OJ 2012 L 142, p. 1).
(
5
)	As guaranteed by Article 47 and Article 48(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’) respectively.
(
6
)	That provision requires Member States to ensure that suspects or accused persons who do not speak or understand the language of the criminal proceedings concerned are provided, without delay, with interpretation during criminal proceedings before investigative and judicial authorities.
(
7
)	In accordance with that provision, Member States are to ensure that suspected or accused persons who do not understand the language of the criminal proceedings concerned are, within a reasonable period of time, provided with a written translation of all documents which are essential to ensure that they are able to exercise their right of defence and to safeguard the fairness of the proceedings.
(
8
)	This provision requires Member States to ensure that suspects or accused persons are provided promptly with information concerning the right to interpretation and translation, in order to allow for those rights to be exercised effectively.