Commission staff working document - Accompanying the Proposal for a Council framework decision on the right to interpretation and to translation in criminal proceedings - Summary of the impact assessment {COM(2009) 338 final} {SEC(2009) 915}
Date: 2009-07-08
Institutions: European Commission
Subjects: EU action, criminal procedure, fact-finding mission, internal border of the EU, legal expenses, operating cost, rights of the defence

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 8.7.2009 
SEC(2009) 916 

COMMISSION STAFF WORKING DOCUMENT 

Accompanying the 

Proposal for a  

COUNCIL FRAMEWORK DECISION 

on the right to interpretation and to translation in criminal proceedings 

SUMMARY OF THE IMPACT ASSESSMENT 

{COM(2009) 338 final} 
{SEC(2009) 915} 

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COMMISSION STAFF WORKING DOCUMENT 

EXECUTIVE SUMMARY 

1. 

BACKGROUND 

The  right  of  accused  persons  and  suspects  to  a  fair  trial  is  a  fundamental  right  which  the 
European  Union  respects  as  a  general  principle  under  Article  6(2)  TEU.  Legal  practitioners 
and  Member  States  (MS)  agree  that  a  prerequisite  for  mutual  trust  is  that  MS'  national 
criminal  justice  systems  guarantee  suspects  and  accused  persons,  whatever  their  nationality, 
minimum safeguards. Action in this area was a priority under the Hague Programme. A new 
proposal  is  envisaged  by  the  Commission's  Legislative  Work  Programme  for  2009.  The 
impact assessment evaluates the options for this proposal.  

2. 

POLITICAL  MANDATE,  LEGAL  BASIS  AND  CONSULTATION  OF  INTERESTED 
PARTIES. 

The  rights  of  the  defence  were  explicitly  mentioned  in  the  Tampere  Conclusions  and  have 
always been an integral part of the EU's mutual recognition agenda. Many instruments have 
been  adopted  to  facilitate  and  expedite  investigation  and  prosecution  of  cross  border  cases. 
Yet, to date no instrument exists to improve the legal position of those subject to cross-border 
proceedings. This lack of balance has a negative impact on mutual trust among the MS, which 
in turn calls for action by the EU. 

Following a 2003 Green Paper on procedural safeguards, Commission adopted a proposal for 
a Framework Decision on the matter in April 2004. Agreement could not be reached and the 
text was shelved. The Commission's proposal was based on Article 31(1)(c) TEU. The Legal 
Service of the Council issued an opinion which confirmed that that was the appropriate legal 
base. 

The Commission hosted an experts' meeting on 26/27 March 2009. Most responses favoured 
legislative  action,  to  be  accompanied  by  non-legislative  measures.  The  overwhelming 
majority  of  participants  opposed  limiting  the  proposal  to  cross  border  cases.  The  IA  was 
discussed  in  two  Inter-Service  Steering  Group  Meetings.  In  preparing  this  Impact 
Assessment, the Commission has drawn from a number of additional sources of information 
including 5 studies. 

3. 

PROBLEM DEFINITION 

The problem, which has various legal and social aspects, can be summarised as follows: 

–  Increased  movement  within  the  EU,  outdated  provisions  and  inconsistent  application  of 

existing international standards (ECHR) at MS level. 

–  Arrests  leading  to  transfers  under  the  EAW  are  considered  to  fall  outside  the  scope  of 

Article 6 ECHR, because this is deemed to be an extradition. 

–  Mutual Recognition can only work effectively if MS are convinced that judicial decisions 

are taken fairly in other MS. 

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–  There  is  a  perception  among  citizens  and  practitioners  that  justice  systems  in  MS  other 
than their own are unfair and that they cannot obtain remedy at international level as the 
European Court of Human Rights (ECtHR) is swamped with complaints.  

–  An  aspect  of  this  problem  is  the  fact  that  the  accused  is  not  guaranteed  access  to 

appropriate translation and interpretation services.  

4. 

THE NEED FOR EU ACTION 

A  ULB  study  found  that  the  efficiency  of  mutual  recognition  measures  was  hampered  by 
inadequate  levels  of  mutual  trust.  Without  appropriate  standards  to  protect  the  rights  of 
suspects  to  understand  proceedings  there  is  a  risk  that  the  previously  identified  imbalance 
between prosecution and the accused could be further aggravated and ultimately run contrary 
to the interests of justice in the EU.  

To date, the MS have complied to differing degrees with their fair trial obligations, deriving 
principally from national law and the ECHR, which has led to discrepancies in the levels of 
safeguards. The EU by way of legislation could clarify the legal obligation to guarantee the 
right to a fair trial in the context of EU criminal law. 

5. 

OBJECTIVES 

The  general  objective  is  to  increase  mutual  trust  to  allow  better  application  of  mutual 
recognition. Through increased mutual trust, existing EU mutual recognition instruments can 
be expected to work better. 

The general objective can be translated into the following specific objectives: 

1) 

2) 

to  provide  common  minimum  standards  for  procedural  rights  in  all  proceedings, 
including extradition and the EAW; 

to  ensure  that  citizens  are  informed  of  how  they  can  benefit  from  these  common 
minimum standards wherever they are within the EU.  

6. 

POLICY OPTIONS 

1: Status quo  

If no EU action is taken, the situation could be expected to evolve as set out in Section 4. This 
option  is  based  on  the  assumption  that  MS  are  expected  to  comply  with  the  ECHR  and 
provide minimum safeguards in domestic legal proceedings.  

2: Promotion of non-legislative measures (best practice) 

Measures would be taken to exchange national best practice and develop EU guidelines. This 
option would seek better awareness of ECHR standards by disseminating and recommending 
practices which help compliance with the ECHR. It would not achieve further approximation 
of legal standards.  

3: New instrument covering all rights 

For this option to succeed, a new treaty with an explicit legal base and a different (ordinary 
community  law)  legislative  procedure  would  be  required.  If  legislation  is  successfully 
adopted, its subsequent implementation by MS, monitoring by the Commission and ultimate 
recourse  to  the  ECJ  will  help  overcome  the  differences  in  compliance  with  the  ECHR. 
Practical measures may be necessary to enhance mutual trust in practice. 

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4: A measure restricted to cross-border cases  

This option would clearly constitute a first step only but, if successful, it would contribute to 
enhancing mutual trust and help overcome resistance to further legislation. However, it would 
need careful consideration so that any potential issue of discrimination between categories of 
suspects involved in cross-border versus domestic proceedings is addressed appropriately.  

5:  Step-by-step  approach  beginning  with  measures  on  access  to  interpretation  and 

translation 

This would involve a new FD requiring MS to provide minimum standards only for access to 
interpretation and translation. The rights should apply to any person suspected or accused of 
having  committed  a  criminal  offence  from  the  time  when  he  is  informed  by  the  competent 
authorities that he is suspected of having committed a criminal offence until finally judged. 
This option could vary in its scope and provide for these 2 rights to apply either in (a) cross-
border cases only or (b) all cases. 

7. 

1 

ANALYSIS OF IMPACTS OF POLICY OPTIONS 

Status quo 

Lack  of  EU  action  in  this  area  may  ultimately  contribute  to  slowing  down  the  progress 
achieved in the area of judicial cooperation in criminal matters and thus the construction of a 
common area of freedom, security and justice.  

2 

Best practice 

Positive impacts: recommendations for best practice could result in some improvements if MS 
chose to follow the recommendations. Negative impacts: much of this proposal echo what the 
Council  of  Europe  includes  in  Recommendations  and  what  other  experts  have  advised,  but 
which has not been carried out. This option may also disappoint the EP, stakeholders and a 
number of MS who want a binding instrument. 

3 

New instrument covering all rights 

Positive Impacts: a FD of this sort would increase the level of legal certainty among MS. It 
would be a binding instrument improving compliance with ECHR standards to ensure a fair 
trial.  However  tackling  rights  together  as  part  of  a  package  means  that  there  is  less  time  to 
devote  to  each  right  and  that  watering  down  occurs  with  trade-offs.  If  the  Lisbon  Treaty 
comes into force, unanimity will no longer be required. 

4 

Cross border cases only 

There is no established definition of a "cross border" case. There is reluctance on the part of 
MS to define a cross border case or to adopt legislation which necessitates a definition. 

The economic impact of this option would be twofold: (1) the cost of putting services in place 
to provide rights and (2) the gain in reduced costs of appeals. The possible risk of this option 
could be a reduction in mutual trust since the impression could be given that there is a two-
tier system of justice – one for national cases and one for cross border. Positive impact: this 
would  satisfy  the  MS  that  have  been  asking  for  a  measure  limited  to  cross  border  cases. 
Negative impact: a measure which attempted to restrict its scope could lead to confusion since 
the same case can be described or classified as cross-border or as domestic by different MS. 
Compliance:  MS  could  have  difficulty  in  practice  in  classifying  cases  so  mistakes/disputes 
would occur naturally.  

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5 

Step-by-step approach  

The economic impacts of this option would be twofold as above for the cross border option. 
Positive  impacts:  a  measure  of  this  type  would  result  in  an  improvement  in  the  quality  and 
provision of interpretation and translation. It would contribute to the development of mutual 
trust. It would ensure a fair trial in cases where the suspect does not understand the criminal 
proceedings,  his  rights  or  the  full  charges  against  him.  Negative  impacts:  it  would  place  a 
financial  and  administrative  burden  on  MS  that  currently  do  not  offer  training  to  legal 
interpreters  and  translators.  Evaluation/monitoring  of  compliance  would  be  required  which 
would also be burdensome. 

Experts at the March 2009 experts' meeting, including MS delegates, greeted with enthusiasm 
the suggestion of working on this right alone as a starting point. In March 2009 a Report was 
published by DG Interpretation: the Final Report of the Reflection Forum on Multilingualism 
and  Interpreter  Training.  The  Recommendations  could  contribute  to  a  future  document  on 
best practice.  

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8. 

COMPARING THE OPTIONS 

+++ 

Indicates high positive impact 

0 

--- 

Indicates zero impact 

Indicates high negative impact 

Effectiveness against the objectives and coherence with 
other EU policies in place 

Option 

Provide minimum 
standards for procedural 
rights in criminal 
proceedings 

Ensure citizens are 
informed of how they can 
benefit from minimum 
standards 

Impact on society and 
fundamental rights 

Efficiency 

Political feasibility 

1.  Status  Quo  – 
no further action 
at EU level 

Non-

2. 
binding/non 
legislative 
measure  setting 
out 
'EU  best 
practice' 

3.  Reintroduce 
2004  instrument 
all 
covering 
rights 

0 

None of the objectives would be met without any EU action  

0 

No cost to MS  

EP and most MS expect EU 
action.  

0 

imbalance 
Continuing 
between  rights  and  judicial 
cooperation  may  damage 
justice  and  mutual  trust  in 
EU. 

+ 

++ 

+ 

- 

Dependent 
willingness 
Will 
standards. 

not 

to 

on 
MS 
implement. 
harmonise 

A  well-organised  Europe-
wide  information  campaign 
may 
raise  awareness  of 
ECHR  rights  and  what  can 
be  done  if  people  feel  they 
have not been upheld. 

If  Member  States  follow 
guidance  consistently  then 
rights  of  the  accused  would 
be upheld. 

on 

Dependent 
how 
implemented. Main cost will 
be  training  which  could  be 
borne by students. For large 
MS  (source  UK)  grants  of 
about €5000 to each college 
envisaged.  

All  MS  agree  on  need  for 
non-legislative 
some 
Experience 
measures. 
non-binding 
suggests 
guidance  will 
be 
not 
followed consistently. 

+++  

+ 

+++ 

--- 

Sets  down  comprehensive 
common standards.  

comprehensive 
A 
Instrument  in  itself  without 
flanking  measures  would 

All  accused  persons  would 
be  guaranteed  rights  under 
ECHR. Would provide basis 

Costs  expected  to  be  very 
considerable,  especially  for 
legal aid in those MS which 

Would  be  rejected  again  by 
the  6  MS  who  opposed  the 
proposal in 2006. 

Lisbon  Treaty  may  enable 

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Effectiveness against the objectives and coherence with 
other EU policies in place 

Option 

Provide minimum 
standards for procedural 
rights in criminal 
proceedings 

Ensure citizens are 
informed of how they can 
benefit from minimum 
standards 

not  raise  public  awareness, 
the 
it  would  draw 
but 
attention  of  national  media 
to  more 
controversial 
elements.  

Impact on society and 
fundamental rights 

Efficiency 

Political feasibility 

justice 

for  mutual  trust  across  the 
EU.  Perception  of  standards 
of 
help 
encourage  more  citizens  to 
exercise  right  to  freedom  of 
movement.  

could 

do not currently provide it. 

current  (2004)  proposal  to 
be  passed  by  QMV  with 
possibility for opt-outs. 

4. Instrument on 
all 
rights  but 
limited  to  cross-
border cases 

5a.  Framework 
Decision  limited 
to  the  right  to 
translation  and 
interpretation  in 
cross 
border 
cases only  

++ 

- 

- 

-- 

Would 
limited 
provide 
common  standards  but  not 
for  all  citizens  who  are 
accused of an offence.  

public 

flanking 
Again,  without 
this  would  not 
measures 
raise 
awareness. 
Attention of national  media, 
possibly 
to 
guaranteeing  of  rights  for 
only those involved in cross-
border  cases,  whose  reports 
could be misleading. 

hostile 

Accused  persons  would  be 
rights 
guaranteed 
wherever  in  EU  they  are 
arrested.  

same 

Risk of creation of 2 tiers of 
accused  –  those  in  cross 
border and those in domestic 
cases 
to 
discrimination  which  may 
outweigh benefits. 

leading 

– 

on 

depend 

Will 
the 
proportion  of  cases  which 
'cross-
will  be  deemed 
border' 
vary 
between  MS  –  for  which 
statistics  are  not  available. 
But costs still expected to be 
high. 

and  will 

+ 

- 

-  

-  

As  above,  hostile  media 
interest could be misleading. 

Limited  common  standards 
in the area where considered 
to be most urgent but not for 
all  citizens  who  are  accused 
of 
offence.  Would 
demonstrate  progress  and 
incremental approach. 

an 

Accused  persons  would  be 
guaranteed  same  rights  to 
translation and interpretation 
wherever  in  EU  they  are 
arrested.  

Risk of creation of 2 tiers of 
accused  –  those  in  cross 
border and those in domestic 

Costs  will  depend  on  the 
proportion  of  cases  which 
'cross-
will  be  deemed 
border' 
vary 
between  MS.  Statistics  are 
not available. 

and  will 

Definition  of  'cross-border 
case'  likely  to  be  disputed, 
especially  as  it  may  lead  to 
fundamental  rights  concerns 
of positive discrimination. 

Unlikely  to  be  any  more 
acceptable than option 3.  

meet 

Most  or  all  MS  expected  to 
if  definition  of 
support 
It 
'cross-border' 
agreed. 
the 
would 
proportionality 
as 
action  would not go beyond 
what  is  necessary  to  meet 
the objectives of the Treaty. 
It  would  also  observe  the 
subsidiarity  principle,  as  it 

test, 

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Effectiveness against the objectives and coherence with 
other EU policies in place 

Option 

Provide minimum 
standards for procedural 
rights in criminal 
proceedings 

Ensure citizens are 
informed of how they can 
benefit from minimum 
standards 

Impact on society and 
fundamental rights 

Efficiency 

Political feasibility 

– 

leading 

cases 
to 
discrimination  which  may 
outweigh benefits. 

5b.  Framework 
Decision  limited 
to  the  right  to 
translation  and 
interpretation  in 
all cases 

++ 

0 

+ 

-- 

Limited  common  standards 
in the area where considered 
to be most urgent. 

Unlikely  to  have  any  effect 
on 
without 
flanking measures.  

awareness 

greater 
provide 
Would 
equality  of  access  to  justice 
by  enshrining  the  right  to 
understand  the  charge  and 
proceedings.  

Large  member  state  (source 
UK)  cost  of  access 
to 
adequate 
interpretation 
estimated  about  €40m  per 
translation 
year.  Cost  of 
varies according to the price 
scheme 
in 
individual member states. 

prevalent 

would  not 
purely domestic cases. 

interfere  with 

Most  MS  would  support 
action in this area.  

Summary of the step by step option 

Relevance to objectives 

Impact  on  society  and 
fundamental rights 

Costs 

Fully  meets  objectives  if 
MS implement guidance 

common 
Limited 
standards 
the  area 
in 
where  considered  to  be 
urgent.  Would 
most 
demonstrate progress and 
incremental approach.  

of 

Costs will depend on the 
proportion 
cases 
which  will  be  deemed 
'cross-border'  and  will 
vary between MS.  

of 

access 

to 
Cost 
adequate 
interpretation 
for  large  MS  (UK)  is 
€40m  per  year. 
about 

Political  feasibility  and 
stakeholder views  

As  above  –  most  MS 
expect  legislative  action 
with flanking measures.  

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Cost of translation varies 
according  to  the  price 
in 
scheme 
individual 
member 
states. 

prevalent 

of 

Cost 
flanking 
measures  will  depend  on 
how  implemented.  Main 
cost  will  be 
training 
which could be borne by 
students.  UK  Govt 
provided  grants  of  about 
€5000 to each college.  

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9. 

THE STEP BY STEP APPROACH IN MORE DETAIL  

This option would enable a progressive, step-by-step approach would provide scope for a long 
term  action  plan  for  the  progressive  approximation  of  laws  in  the  area  of  procedural  rights. 
This approach would not be as dependent on the Lisbon Treaty as option 3.  

This option would result in an improvement in the quality and provision of interpretation and 
translation, which would contribute to building mutual trust. It would ensure a fairer trial in 
cases  where  the  suspect  does  not  understand  the  proceedings,  his  rights  or  the  full  charges 
before him. The option would place an additional financial and administrative burden on MS 
that currently do not offer training to legal interpreters and translators.  

Respect for the right to translation and interpretation is essential, but not sufficient, for mutual 
trust.  It  is,  however,  an  essential  right  in  that  in  enables  exercising  other  rights,  such  as  the 
right to legal aid or the right to receive information about one's own rights. Understanding the 
proceedings is a pre-condition for asserting one's other rights to a fair trial. 

10. 

MONITORING AND EVALUATION 

Any  Commission  proposal  would  lay  down  an  obligation  for  MS  to  communicate 
implementing  legislation and a correlation table to the Commission within a specified time. 
The  Commission  would  then  prepare  an  implementation  report  recording  which  MS  had 
complied with their obligations to transpose the FD. Indicators which can be used to assess 
compliance would be whether training courses were on offer, whether a register was in place 
and  whether  numbers  of  certified  interpreters  and  translators  could  be  provided.  A 
Eurobarometer survey could be used to monitor improvement in public opinion's assessment 
of the fairness of justice in the EU. 

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