Commission staff working document - Proposal for a Council Framework Decision on the right to interpretation and translation in criminal proceedings accompanying the proposal for a framework decision on the right to interpretation and to translation in criminal proceedings - Impact assessment {COM(2009) 338 final} {SEC(2009) 916}
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) 915 

COMMISSION STAFF WORKING DOCUMENT 

Proposal for a Council Framework Decision on  
the right to interpretation and translation in criminal proceedings  

Accompanying the 

Proposal for a  

FRAMEWORK DECISION 

on the right to interpretation and to translation in criminal proceedings 

IMPACT ASSESSMENT 

{COM(2009) 338 final} 
{SEC(2009) 916}

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COMMISSION STAFF WORKING DOCUMENT 

Proposal for a Council Framework Decision on  
the right to interpretation and translation in criminal proceedings  

SECTION 1: INTRODUCTION 

1. 

2. 

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. 
This  right  is  specifically  mentioned  in  the  Charter  of  Fundamental  Rights  of  the 
European  Union  (Article  47  -  'Right  to  an  effective  remedy  and  to  a  fair  trial'). 
European  citizens'  confidence  in  other  Member  States'  criminal  justice  systems 
could  improve  if  fundamental  rights  were  respected  and  seen  to  be  respected 
throughout the EU. Legal practitioners and Member States agree that a prerequisite 
for mutual trust is that Member States' national criminal justice systems guarantee 
suspects and accused persons, whatever their nationality, minimum safeguards for 
a fair trial. This is particularly important in cross-border proceedings, in particular 
those  covered  by  mutual  recognition  instruments,  such  as  the  European  Arrest 
Warrant (EAW), through which a Member State is expected to surrender suspects 
or  convicted  persons,  including  its  nationals,  rapidly  and  without  examination  of 
the case file, for trial or to serve a custodial sentence in another Member State.  

On 28 April 2004 the Commission presented a proposal for a Framework Decision 
on  certain  procedural  rights  in  criminal  proceedings  throughout  the  European 
Union1 ("the 2004 proposal"). After 3 years of discussion and despite widespread 
support,  this  proposal  was  not  adopted.  Six  Member  States  opposed  the  measure 
on various grounds, including that the TEU did not provide a sufficient legal basis, 
that  the  EU's  mandate  was  limited  to  cross  border  cases  and  that  the  European 
Convention on Human Rights offered adequate protection to those facing criminal 
charges  throughout  the  EU  (see  further  details  below  under  "Political  mandate"). 
However, action in this area remains a priority under the Hague Programme and a 
new proposal is envisaged by the Commission's Legislative Work Programme for 
2009. This impact assessment evaluates the options for this proposal.  

SECTION 2: POLITICAL MANDATE, LEGAL BASIS, AND CONSULTATION OF 

INTERESTED PARTIES 

2.1 

Political mandate and legislative history 

Political mandate  

1 

Framework  Decision  on  certain  procedural  rights  applying  in  proceedings  in  criminal  matters 
throughout the European Union COM (2004) 328 of 28.04.2004 

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3. 

4. 

5. 

6. 

7. 

2 

3 
4 

A  proposal  on  procedural  rights  is  one  of  the  priority  initiatives  of  the  CLWP 
2009, but the context in which a legislative proposal is brought forward needs to 
be considered carefully, given in particular the dossier's history. 

The  rights  of  the  defence  were  explicitly  mentioned  in  the  Tampere  European 
Council  Conclusions2  and  have  always  been  an  integral  part  of  the  EU's  mutual 
recognition  agenda.  The  introductory  section  of  the  2001  Mutual  Recognition 
Programme3  points  out  that  “mutual  recognition  is  very  much  dependent  on  a 
number  of  parameters  which  determine  its  effectiveness”.  These  parameters 
include  “mechanisms  for  safeguarding  the  rights  of  […]  suspects”  (parameter  3) 
and  “the  definition  of  common  minimum  standards  necessary  to  facilitate  the 
application of the principle of mutual recognition” (parameter 4).  

on 

adopted 

5  November 

The  Hague  Programme, 
stated: 
"The  further  realisation  of  mutual  recognition  as  the  cornerstone  of  judicial 
cooperation implies the development of equivalent standards for procedural rights 
in  criminal  proceedings,  based  on  studies  of  the  existing  level  of  safeguards  in 
Member States and with due respect for their legal traditions. In this context, the 
draft  Framework  Decision  on  certain  procedural  rights  in  criminal  proceedings 
throughout the European Union should be adopted by the end of 2005."  

2004, 

The Hague Programme seeks to strike a fair balance between a more effective and 
faster scheme of cross-border judicial cooperation in the European Union and the 
protection  of  fundamental  rights  affected  by  such  proceedings.  Clearly,  judicial 
cooperation, as envisaged under Article 31, must not have the effect of eroding the 
rights  of  suspects  and  accused  persons.  Since  2002,  numerous  instruments  have 
been  adopted  to  facilitate  and  expedite  investigation  and  prosecution  of  cross 
border  cases4.  For  example,  judicial  cooperation  between  investigating  and 
prosecuting authorities has been greatly enhanced by the creation of the European 
Judicial  Network  and  of  Eurojust,  by  the  adoption  of  the  2000  Convention  on 
Mutual Assistance in Criminal Matters and, most importantly, by the extension of 
the principle of mutual recognition to criminal proceedings.  

As  a  result  of  these  measures,  judicial  cooperation  in  criminal  matters  in  the 
European  Union  has  already  become  less  formal  and  more  standardised.  Yet,  to 
date  no  instrument  exists  to  improve  the  legal  position  of  those  subject  to  cross-
border proceedings and guarantee that they benefit from the same minimum rights 
to a fair trial in all EU jurisdictions. This lack of balance has a negative impact on 
mutual trust among the member States, which in turn calls for action by the EU. 
The  EU  should  seek  to  enhance  that  trust  and  ensure  that  the  rights  of  persons 

Tampere  European  Council  Conclusion  30  (October  1999)  invites  the  Council  “to  establish 
minimum  standards  ensuring  an  adequate  level  of  legal  aid  in  cross-border  cases”,  Tampere 
Conclusion 31 refers to “multilingual forms or documents to be used in cross-border court cases” – 
the  basis  of  Com's  proposed  “Letter  of  Rights”.  Tampere  Conclusion 33  mentions  facilitating  “the 
judicial protection of individual rights”. Tampere Conclusion 35 points out that the principle of a fair 
trial should not be prejudiced by fast track extradition procedures. Tampere Conclusion 40 seeks to 
develop measures against crime “while protecting the freedoms and legal rights of individuals” 
OJ C12-15.01.2001 
E.g.  Framework  Decisions  on  the  European  Arrest  Warrant,  freezing  orders,  confiscation  orders, 
financial penalties and the European Evidence Warrant. 

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suspected and/or accused in criminal proceedings are safeguarded throughout the 
European Union.  

Legislative history 

In  February  2003,  the  Commission  adopted  a  Green  Paper  on  procedural 
safeguards  for  suspects  and  defendants  in  criminal  proceedings  throughout  the 
European  Union.  The  Commission's  suggested  approach  was  not  to  create  new 
rights but to give a higher profile to the specific fair trial rights laid down in the 
European Convention on Human Rights and other international conventions (e.g. 
ICCPR5),  in  order  to  promote  better  and  more  consistent  compliance  with  that 
convention, and thus increase mutual trust.  

Following the Green Paper, in April 2004 the Commission adopted a proposal for 
a  Framework  Decision  on  certain  procedural  rights  applying  in  proceedings  in 
criminal  matters  throughout  the  European  Union,  focusing  on  “basic  rights” 
identified in the Green Paper. The Commission relied on Article 31 (1) (c) TEU6 
as the legal base. The proposal was based on the assumption that having common 
minimum  standards  of  procedural  rights  will  increase  mutual  trust  and  thus 
improve  mutual  recognition.  The  original  proposal  for  a  Framework  Decision 
covered  rights  in  the  following  6  areas:  1)  access  to  legal  representation,  both 
before the trial and at trial; 2) access to interpretation and translation; 3) ensuring 
that  vulnerable  suspects  and  defendants  in  particular  were  properly  protected;  4) 
consular  assistance  to  foreign  detainees;  5)  the  right  to  communicate  to  a  family 
member  the  fact  of  being  in  detention;  6)  notifying  suspects  and  defendants  in 
writing of their rights in a document called the “Letter of Rights”. 

Discussions  in  the  DROIPEN  Working  Group  started  in  September  2004.  At  the 
outset,  some  Member  States  raised  the  question  whether  Article  31  (c)  TEU 
provided  an  adequate  legal  base.  The  Council  Legal  Service  was  asked  for  an 
Opinion  on  the  question;  it  gave  a  positive  Opinion  endorsing  the  Commission's 
approach (see details below under 'Legal Basis'). 

While  most  Member  States  supported  the  proposal,  and  indeed  had  declared 
themselves  in  favour  of  an  EU  instrument  during  the  Green  Paper  consultation, 
one  Member  State  declared  firm  opposition  at  an  early  stage  and  opposed  the 
proposal on two grounds, that there was no legal base – it did not accept the CLS 
Opinion - and that there was no need for such a proposal since all Member States 
were signatories to the ECHR so standards for criminal proceedings were already 
protected  within  the  EU.  Some  other  aspects  of  the  proposal  were  deemed 
unworkable  by  certain  Member  States.  This  included  the  evaluation  and 
monitoring  requirement  which  was  deleted  at  an  early  stage.  Other  deletions 

8. 

9. 

10. 

11. 

5 

Article  9,  International  Covenant  on  Civil  and  Political  Rights,  adopted  and  opened  for  signature, 
ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966; entry 
into force 23 March 1976  
Art 31(1):“Common action on judicial cooperation in criminal matters shall include: 

6 
[…]  
(c)  ensuring  compatibility  in  rules  applicable  in  the  Member  States,  as  may  be  necessary  to  improve  such 

cooperation; 

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12. 

13. 

14. 

15. 

2.2 

16. 

included the obligation to record (by audio or video means) the interviews between 
the  police  and  the  suspect.  The  provisions  on  protection  for  vulnerable  suspects, 
consular assistance and the right to communicate with a family member to inform 
them of the fact of being in detention were also subject to difficulties.  

Despite  the  above  difficulties,  substantial  progress  was  made  by  end  December 
2005 (The Hague Programme deadline) and the relevant Council Working Group 
seemed  close  to  reaching  an  agreement.  However  during  the  first  half  of  2006 
another Member State announced its opposition to the text and, shortly thereafter, 
4 further Member States declared that they could not support the proposal either. 
While negotiations continued, the group of - by then - 6 Member States announced 
in  May  2006  that  they  did  not  want  a  binding  text  at  all  and  put  forward  a  draft 
(non-binding)  Resolution.  The  Commission,  in  agreement  with  the  majority, 
argued  that  a  binding  instrument  was  essential  since  for  rights  to  be  meaningful, 
they have to be enforceable in court.  

limited  right 

In  2007  every  effort  was  made  to  accommodate  the  6  Member  States.  The 
Presidency drafted a new text, reducing the rights covered to: 1) legal advice; 2) 
translation  of  essential  procedural 
to 
interpretation  (and  a 
documents);  and  the  right  to  information  about  rights  (to  be  transmitted  orally 
rather  than  through  a  Letter  of  Rights).  One  of  the  opposing  Member  States 
announced  that  it  could  only  support  a  proposal  limited  to  EAW  cases,  and  an 
alternative text reflecting this limited scope was drafted by the Presidency but this 
was  also  rejected  by  another  Member  State.  The  option  of  a  non-binding 
Resolution was also discussed, but the majority of Member States still favoured a 
binding  instrument.  Discussions  continued  until  June  2007  including  the 
possibility of using the enhanced cooperation mechanism (Art 40 TEU).  

The revised text was presented to the June 2007 Justice and Home Affairs Council, 
with its variations and also two draft articles with the possibility of an opt-out, or 
an  opt-in  (a  limited  "cross-border"  text  with  the  possibility  for  those  Member 
States wishing it to extend to all cases). Agreement could not be reached and the 
text was shelved.  

In view of the failure to reach agreement on the Commission's 2004 proposal, it is 
clear that a new approach is needed.  

Legal basis and existing instruments 

a 

provides 

The  power  to  act  and,  where  necessary,  propose  EU  legislation  in  the  area  of 
criminal law is conferred, inter alia, by two articles of the TEU. First, Article 29 
base: 
TEU 
“…the  Union's  objective  shall  be  to  provide  citizens  with  a  high  level  of  safety 
within  an  area  of  freedom,  security  and  justice  by  developing  common  action 
among  the  Member  States  in  the  fields  of  police  and  judicial  cooperation  in 
criminal  matters  and  by  preventing  and  combating  racism  and  xenophobia.  That 
objective 
… 
-  approximation,  where  necessary,  of  rules  on  criminal  matters  in  the  Member 
States, in accordance with the provisions of Article 31(e).” 

achieved 

through: 

general 

legal 

shall 

be 

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17. 

18. 

addition,  Article 

base: 
In 
“Common  action  on  judicial  cooperation  in  criminal  matters  shall  include: 
(c)  ensuring  compatibility  in  rules  applicable  in  the  Member  States,  as  may  be 
necessary to improve such cooperation; 

a  more 

provides 

specific 

legal 

31 

The  Commission's  proposal  was  based  on  Article  31(1)(c)  TEU.  As  during  the 
negotiations  on  the  Commission's  2004  proposal  at  least  one  Member  State 
expressly  challenged  the  legal  base  chosen  for  that  proposal,  on  30  September 
2004 the Legal Service of the Council of the European Union issued an opinion7 
on the matter. In this opinion8 the Council's Legal Service confirmed that Article 
31(1)(c) was the appropriate legal base. Specifically, the opinion stated that "The 
Legal  Service  considers  that  the  Commission  proposal  is  correctly  based  on 
Article 31(1)(c) of the TEU and that the Council can adopt the proposed measures 
if, in compliance with the principle of subsidiarity, it considers that they do not go 
beyond what is necessary to improve judicial cooperation in criminal matters." 

2.3 Organisation and timing  

19. 

20. 

The  Commission  hosted  an  experts'  meeting  on  procedural  rights  on  26  and  27 
March  2009  involving  practitioners  and  representatives  of  Member  States  (the 
Report is in Annex 2) to discuss whether and if so what action was needed in this 
area  at  EU  level,  particularly  on  the  question  whether  such  action  should  be 
limited to cross-border  cases only. Most responses favoured legislative action, to 
be accompanied by non-legislative measures, as necessary in addressing the lack 
of progress in the area of mutual trust and mutual recognition. As far as the scope 
is  concerned,  the  overwhelming  majority  of  participants'  opposed  limiting  the 
proposal to cross border cases (only 1 delegate spoke in favour of this idea). See 
below at paragraphs 79-87 for a discussion of cross border cases. 

The  planned  proposal  should  be  adopted  by  the  Commission  in  July  2009.  The 
reasons why it is not desirable to wait until it is known whether the Lisbon Treaty 
will come into force are set out in paragraph 101 in the section below on Options. 
Several recent studies (ULB MR study, see paragraph 24 below and footnote 11) 
and  conclusions  of  meetings  (Justice  Forum,  experts'  meeting  on  procedural 
rights), confirm that further progress with the EU's common area of justice, based 
on  the  mutual  recognition  of  judicial  decisions,  requires  that  work  on  procedural 
rights resumes - urgently - in the Council. The incoming SE presidency has made 
procedural rights one of their priorities. At this stage, given the constraints, only a 
step-by-step  approach  is  realistic  and  feasible.  Nothing  would  prevent  the 
Commission  from  accelerating  work  on  the  remaining  rights  after  the  Lisbon 
Treaty enters into force. 

2.4 Consultation and expertise 

Regarding the original 2004 proposal 

7 
8 

COPEN 117  
See Annex 1 

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21. 

22. 

For  the  original  2004  proposal,  extensive  consultation  was  carried  out  using 
various methods. Since the factors which indicated that EU legislation in this area 
was  necessary  still  apply,  we  reiterate  briefly  the  findings  of  the  research  and 
consultation carried out in order to prepare that earlier proposal. The first step was 
the  posting  of  a  Consultation  Paper  on  DG-JLS  (then  DG-JHA)'s  website  in 
January  2002  to  which  about  100  responses  were  received.  A  questionnaire  was 
sent to the Ministries of Justice of the Member States and an experts' meeting held 
in October 2002. A Green Paper was published in February 2003 and all interested 
parties  were  invited  to  submit  their  comments  in  writing  and  to  attend  a  public 
hearing  held  in  June  2003.  Each  of  these  consultation  exercises  showed  a  high 
level of support for EU legislation in this area. 

In 2006, during the discussions on the Commission's 2004 proposal, the Council of 
Europe, and in particular the secretariat of the European Court of Human Rights, 
was consulted about its possible support for an EU instrument in the area of rights. 
In  its  opinion9  the  Council  of  Europe  broadly  supported  EU  action  in  this  field 
stating  "The  Council  of  Europe  fully  recognises  the  importance  of  common 
minimum  standards  in  procedural  rights  as  a  necessary  precondition  for  mutual 
trust  in  the  legal  systems  of  EU  member  States.  […]  The  Council  of  Europe  is 
ready to cooperate with the EU institutions and member States to ensure that the 
framework decision will enhance fundamental rights protection in Europe, which, 
as stated, is a common goal of the European Union and of the Council of Europe." 
It  also  stated  that  it  "would  welcome  practical  measures  to  improve  compliance 
with ECHR standards which would strengthen mutual trust, thereby enhancing the 
operation of mutual recognition and judicial cooperation in criminal matters, not 
only within the European Union, but all over Europe." 

Regarding the revised 2009 proposal 

23. 

In preparing this Impact Assessment, the Commission has drawn on a number of 
following  5  studies: 
additional  sources  of 

information, 

including 

the 

(1)  The  study  'Status  Quaestionis'10:  Questionnaire  on  the  Provision  of  Legal 
Interpreting  and  Translation  in  the  EU  was  carried  out  by  means  of  an  EU  wide 
questionnaire. The questionnaire was sent both to governmental bodies (Ministries 
of  Justice)  and  to  practitioners  (Bar  associations,  interpreters,  translators, 
academics teaching interpretation and translation) with questions about, inter alia, 
training, cost of provision of the service, standards of provision and mechanisms in 
place  to  ensure  quality  control.  Government  bodies  from  13  Member  States 
replied.  For  13  other  Member  States  data  were  obtained  only  from  non-
governmental  sources.  No  responses  were  received  at  all  from  1  Member  State. 
The results were analysed on the basis of certain indicators in order to assess the 
provision of legal interpretation and translation, starting with training offered and 
including  frequency  of  provision  of  interpretation  and  translation  in  criminal 
proceedings. Other indicators were whether there is a system of quality control and 
any  regulation  of  the  profession.  The  study  includes  statistics  on  the  number  of 

9 
10 

DROIPEN 62 of 10/10/2006 
Status Quaestionis: Questionnaire on the Provision of Legal Interpreting and Translation in the EU, 
AGIS project JLS/2006/AGIS/052 – by Erik Hertog and Jan Van Gucht 

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cases dealt with by the public prosecutor per 100,000 inhabitants. The findings of 
this study are summarised in tables in Annex 5.  

(2)  The  'Analysis  of  the  future  of  mutual  recognition  in  criminal  matters  in 
the  European  Union'11,  carried  out  by  the  Université  Libre  de  Bruxelles  (ULB) 
and  finalised  in  November  2008,  followed  a  two-stream  approach.  National 
correspondents of ULB's European Criminal Law Academics Network (ECLAN) 
carried  out  research  in  their  home  Member  State  and  drafted  a  national  report 
based  on  in-depth  research  and  interviews  with  experts  and  practitioners  (after 
completing a questionnaire). The researchers then carried out a horizontal analysis 
comparing  with  the  Member  State  analysis  to  identify  common  themes.  The 
findings  were  examined  further  in  interviews  with  more  than  150  experts  and 
practitioners,  including  civil  servants  of  ministries  of  justice  responsible  for  the 
negotiation  and  transposition  of  mutual  recognition  instruments,  judges,  defence 
lawyers, liaison magistrates, prosecutors and others.  

(3)  The  Final  Report  of  the  Reflection  Forum  on  Multilingualism  and 
Interpreter  Training,  published  by  DG  Interpretation  in  March  200912  made 
recommendations for best practice and quality improvement in legal interpreting. 
DG JLS participated in the work of the Reflection Forum which met several times 
during 2008 and 2009. The Report is comprehensive, with a section setting out the 
present  situation,  background  and  relevant  developments  (including  DG-JLS's 
2003 Green Paper on Procedural Safeguards13 and 2004 proposal for a Framework 
Decision on certain procedural rights applying in proceedings in criminal matters 
throughout the European Union). The report has sections on training, on adopting 
a  professional  Code  of  Conduct  and  guidelines  for  good  practice,  working 
arrangements,  implementing  an  efficient  structure  of  legal  interpreting  and 
concluding recommendations.  

(4)  The  Study  by  the  Maastricht  University  on  existing  safeguards  in  all 
Member  States14,  published  in  December  2005,  showed  a  wide  discrepancy  in 
standards  and  differing  levels  of  compliance  with  the  European  Convention  on 
Human  Rights  (ECHR),  was.  In  2008,  the  Commission  issued  an  invitation  to 
tender  for  a  study  updating  the  2005  Maastricht  study.  Maastricht  and  Ghent 
Universities submitted a successful joint tender and are currently carrying out the 
updating study, the results of which will be available in July 2009. 

(5) Effective Criminal Defence Rights in Europe, a study funded in part under 
the Criminal Justice Programme is a joint initiative of JUSTICE, the University of 
the  West  of  England,  the  Open  Society  Justice  Initiative  and  Maastricht 
University.  It  will  be  carried  out  over  a  2  year  period  (2008-2010)  and  provide 

11 

12 
13 
14 

"Analysis of the future of mutual recognition in criminal matters in the European Union" by Gisèle 
Vernimmen-Van  Tiggelen  and  Laura  Surano  (Call  for  tenders  JLS/D3/2007/03  European 
Commission) – 20 November 2008 
http://ec.europa.eu/commission_barroso/orban/docs/FinalL_Reflection_Forum_Report_en.pdf 
COM(2003) 75 final of 19.2.2003 
The study, "Procedural Rights in Criminal Proceedings: Existing level of safeguards in the European 
Union"  was  carried  out  for  DG-JLS  by  Taru  Spronken  and  Marelle  Attinger  (Faculty  of  Law, 
Department of Criminal Law and Criminology, University of Maastricht) on 12 December 2005. 

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empirical  information  on  the  extent  to  which  procedural  rights  that  are 
indispensable for an effective defence, such as the right to information, the right of 
access to a lawyer and the right to an interpreter, are provided in practice in 8 EU 
Member  States  and  one  accession  country  (Turkey)15.  The  reports  for  Belgium, 
England and Wales and Hungary have been completed. 

Consultation of stakeholders 

24. 

Prior to the 2004 proposal's adoption, extensive consultation was carried out (see 
paragraph  22  above).  The  position  of  stakeholders  has  not  changed  since  that 
consultation  exercise  (we  have  regular  and  frequent  contact  with  our  major 
stakeholders  :European  Criminal  Bar  Association,  CCBE  –  Council  of  Bars  and 
Law  Societies  of  Europe  -,  national  Bar  associations,  academics  working  in  the 
field,  NGOs  such  as  JUSTICE,  Amnesty  International  and  Fair  Trials 
International,  the  European  Parliament  and  international  networks  of  translators 
and interpreters). At a Justice Forum meeting in July 2008 at which ULB's study 
on  mutual  recognition  was  discussed,  the  overwhelming  majority  of  participants 
expressed  their  continuing  wish  to  see  legislation  at  EU  level  on  procedural 
safeguards. The Justice Forum was constituted with the aim of providing an arena 
in  which  the  Commission  could  consult  its  stakeholders.  In  relation  to  this 
initiative, general principles and minimum standards for consultation of interested 
parties have been followed.  

Impact Assessment Board 

25. 

The Impact assessment was examined by the Impact Assessment Board on 27 May 
2009. Further to the IAB's recommendations, additional information and data was 
provided. At the IAB's request, more details about timing in relation to the Lisbon 
Treaty were given (paragraph 21), further costs estimates were added (Table 6 in 
Annexe  4  was  added  and  paragraphs  74-76  were  developed)  and  the  problem 
definition  was  refined  (paragraphs  32-35)  to  show  why  mutual  trust  is  so 
important, what factors affect it and how to enhance it. The IAB asked for a better 
explanation  about  cross  border  cases  and  why  these  are  difficult  to  define. 
Therefore,  the  section  on  Option  4,  a  proposal  limited  to  cross  border  cases 
(paragraphs  82-91),  was  amplified  in  order  to  clarify  the  problem.    The  Options 
table  (Section  8)  was  refined  to  indicate  better  the  effectiveness,  efficiency  and 
consistency  of  the  options  with  defined  policy  objectives,  and  the  political 
feasibility  of  each  option  was  assessed.  Finally,  more  information  about 
consultation of stakeholders was added (paragraph 25) to show how extensive the 
consultation had been and that the exercise fully complied with general principles 
and standards for consultation. 

SECTION 3: PROBLEM DEFINITION  

26. 

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

15 

The research project will cover nine countries: Poland, Hungary, Belgium, France, Italy, Germany, 
England and Wales and Finland and an accession state (Turkey).  

EN 

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•  Increased  movement  within  the  EU,  outdated  provisions  and  inconsistent 
application of existing international standards (ECHR) at MS level result in an 
increasing  number  of  cases  where  the  accused  are  not  fully  aware  of  their 
rights, the charges against them, and the procedures which are to be applied. 

•  In  turn,  there  is  a  perception  among  citizens  and  practitioners  that  justice 
systems  in  Member  States  other  than  their  own  are  unfair,  that  they  cannot 
obtain remedy at international level as the European Court of Human Rights is 
swamped with complaints. 

•  Ultimately, this problem hinders the development of a European area of justice 
as the implementation of the mutual recognition principle presupposes that MS 
have trust in each others' criminal justice systems.  

•  Under  the  mutual  recognition  principle,  Member  States  are  expected  to 
surrender  their  nationals  for  trial  or  to  serve  custodial  sentences  in  prisons  in 
another Member State. Judicial authorities are expected to recognise a foreign 
judicial decision as being "equivalent" to one taken in their own Member State. 
This can only work effectively if they are convinced that judicial decisions are 
taken  fairly  in  other  Member  States,  assuming  that  the  relevant  standards  for 
fair  trial  rights  were  respected.  Currently,  this  is  not  always  the  case  and  this 
harms mutual trust. In some cases lack of trust reaches a level where Member 
States refuse to execute foreign judicial decisions based on various grounds for 
refusal,  including  some  not  foreseen  in  European  legislation.  If  there  were 
common minimum safeguards, judicial authorities would be more comfortable 
executing a foreign judicial decision in the knowledge that the person affected 
by  the  decision  had  access  to  interpretation,  translation,  legal  advice,  a 
reasonable time to prepare their defence and other rights to be guaranteed at a 
minimum level throughout the EU. 

•  Practitioners  point  to  an  imbalance  in  the  acquis  between  the  numerous 
measures to facilitate and expedite the prosecution of criminals (EAW, judicial 
and police cooperation) and the absence of measures to protect the rights of the 
accused.  

•  The  most  pressing  aspect  of  this  problem,  according  to  practitioners  and 
stakeholders, is the fact that the accused is not guaranteed access to appropriate 
translation and interpretation services. The extent of the problem is still unclear 
as Member States do not monitor the numbers of persons accused in other EU 
jurisdictions  and  who  do  no  understand  the  official  language[s]  of  the  MS  in 
question.  No  statistics  are  available;  therefore  the  problem  in  most  Member 
States remains latent. Case studies are however available. Studies16 confirm the 
widespread  view  among  practitioners17  that  the  current  situation  hinders  the 

16 

17 

See Procedural Rights in Criminal Proceedings: Existing Level of Safeguards in the European Union, 
by  Taru  Spronken  and  Marelle  Attinger,  Faculty  of  Law,  Department  of  Criminal  Law  and 
Criminology University of Maastricht, pages 35 - 52 
See submissions by practitioners to the Experts' Meeting organised by the European Commission on 
26  – 27  March 2009,  in  particular  a joint  submission by Open Society, Amnesty  International  and 
at 
Justice 

(available 

EN 

10 

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27. 

28. 

development of mutual trust, a prerequisite for the mutual recognition which is 
the cornerstone of the European area of justice.  

Minimum  standards  for  implementing  the  ECHR  come  not  just  from  the  ECHR 
itself  but  also  from  the  case  law  of  the  European  Court  of  Human  Rights 
(ECtHR).There  are  now  47  states  bound  by  the  ECHR.  They  joined  the  ECHR 
mechanism  at  different  times  and  in  different  circumstances.  It  is  possible  that 
different  States  understand ECHR obligations  differently. Violations  would  seem 
to  occur  in  part  because  States  do  not  have  sufficient  mechanisms  in  place  to 
ensure  that  the  ECHR  is  observed  in  practice  and  in  part  because  States  do  not 
always  comply  with  judgments  finding  that  they  have  committed  violations  by 
changing their system. 

The ECHR was drafted in 1950 and came into force in 1953, at which time only 3 
Contracting  States  recognised  the  competence  of  the  ECtHR  to  hear  applications 
from  individuals  (rather  than  interstate  applications).  It  was  only  in  1998,  when 
Protocol  11  to  the  Convention,  came  into  force  that  it  became  compulsory  to 
recognise  the  right  of  individual  petition.  The  obligation  to  recognise  the 
competence  of  the  ECtHR  is  therefore  a  fairly  recent  development.  The  fact  that 
there  are  no  agreed  minimum  standards,  that  the  obligation  to  recognise  the 
ECtHR is a recent one and that States have joined at different times may explain to 
a certain extent the continued violations of the ECHR. 

Why not include the rights of victims? 

29. 

The rights of victims are clearly connected with the rights of suspects/accused, as 
these two categories of persons are key players in any criminal proceedings (unless 
the  crime  is  "victimless").  A  fair  trial  implies  fair  treatment  of  both  categories. 
Yet,  their  rights  are  quite  different  in  substance  (Article  6  ECHR  only  protects 
defendants)  and  legislation  on  the  rights  of  victims  already  exists  under  EU  law 
(Framework  Decision  2001/220/JHA  on  the  standing  of  victims  in  criminal 
proceedings  as  well  as  Council  Directive  2004/80/EC  on  compensation  to  crime 
victims).  While  the  implementation  of  these  two  EU  instruments  is  far  from 
adequate in the Member States (see implementation reports of 20 April 2009), they 
already provide a degree of protection for victims in the EU.  

Problem 1 – Absence of minimum standards hampers mutual trust 

30. 

Mutual  trust  is  presumed  in  the  EU's  strategic  intention  to  create  a  European 
judicial  area.  Experts  across  the  EU  report  however  that  this  trust  has  not 
developed  in  the  absence  of  common  traditions  and  procedures,  and  of  legal 
remedies for the person affected by existing mutual recognition measures. Where 
however, cultural and historic ties are strong, such as in the Nordic countries, trust 
and  cooperation  between  jurisdictions  is  more  advanced18.  As  the  ULB  study 

18 

http://www.ecba.org/extdocserv/projects/ps/Submislegalbasisprocrightsframework.pdf)  as  well  as 
the minutes of the meeting (see Annex 2) 
See 
home-affairs-press-conference;-ministers-of-justice--6574/ 

http://www.eu2009.cz/fr/media-service/video/informal-meeting-of-ministers-for-justice-and-

EN 

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31. 

32. 

33. 

demonstrates,  the  lack  of  balance  between  the  interests  of  the  prosecution  and 
those of the defence acts as a further barrier to trust19. 

The  point  made  about  lack  of  trust  among  the  Member  States  and  this  being 
related directly or indirectly to the lack of harmonisation of minimum procedural 
rights is regularly made in various fora, including in the JHA Council. 

When  the  ECHR  was  drawn  up  in  1950,  cross-border  communication,  travel, 
crime and judicial cooperation and mutual recognition were rare. Article 6 of the 
ECHR, which lays down fair trial guarantees, was not designed with present levels 
of cross border crime in mind. Mutual recognition measures, such as the EAW or 
the  European  Freezing  Order,  have  changed  the  nature  of  cross  border  criminal 
proceedings  but  the  concomitant  rights  have  not  been  specifically  addressed  and 
the rights set out in Article 6 ECHR were not designed to offer safeguards in this 
type  of  proceedings.  Case-law  of  the  ECtHR  shows  that  violations  of  Article  6 
rights occur in all Member States. 

The high number of cases20 alone before the ECtHR relating to Article 6 suggests 
that  these  rights  are  not  always  respected  (in  2008,  there  were  8172  judgments 
finding that a violation had occurred of which 6000 related to violations of Article 
6)21.  There  is  currently  a  backlog  of  104,100  cases  at  the  European  Court  of 
Human Rights of which 25,100 related to Article 622. Furthermore, the ECtHR can 
provide a remedy for violations of Article 6 only after the event.  

Problem 2 -- Not understanding the proceedings may raise an issue of fair trial  

34. 

The absence of a specific EU instrument providing minimum standards applicable 
to suspects in cross-border proceedings could lead to a perception that the EU does 
not sufficiently promote minimum standards of justice across the Member States. 
The ECHR provides that a person facing a criminal charge must be informed in a 
language which  he understands of  the nature and cause of the accusation against 
him and must have the free assistance of an interpreter if he cannot understand or 

19 
20 

21 

22 

ULB Mutual Recognition Study, page 15 
"This system is a victim of its own success. Not only does the Court receive a steady stream of cases, 
the rising tide of applications now threatens to overwhelm the Court. A brief survey of annual rates 
of  activity  in  this  area  is  revealing.  The  European  Commission  of  Human  Rights  received  49 
individual  applications  in  the  decade  of  the  60’s,  163  in  the  70’s,  and  455  in  the  80’s.  With  the 
enlargement  and  entry  into  force  of  Protocol  no.  11,  the  numbers  have  exploded.  In  1998,  the 
Registry of the Court received 18,200 individual applications, a figure that has increased every year 
thereafter,  to  50,500  in  2006.  Although  some  98%  of  all  applications  will  be  determined  to  be 
inadmissible for one reason or another, the Court is nonetheless overloaded. Today there are nearly 
100,000  applications,  in  the  post-admissibility  phase,  pending  before  the  organs  of  the  Court.  The 
delay  between  application  and  a  decision  on  the  merits,  has  now  reached  more  than  five  years 
(though only 5% of applications judged admissible will reach the merits stage). The annual rate of 
judgments on the merits rendered by the Court shows a similar pattern. Through 1982, the Court had 
rendered, in its history, only 61 such rulings pursuant to applications by individuals. It issued 72 such 
rulings in 1995; 695 in 2000; 1,105 in 2005; and 1,560 in 2006." Introduction: The Reception of the 
ECHR in National Legal Orders by Alec Stone Sweet and Helen Keller 
ECtHR annual report for 2008: http://www.echr.coe.int/NR/rdonlyres/FF6B92F9-44FA-402F-8D86-
A2507A1C3BC2/0/Rapport_annuel_2008.pdf 
Figure provided by the Council of Europe liaison office in Brussels. 

EN 

12 

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speak the language spoken in the court. There are also similar provisions in Article 
14  (3)  of  the  International  Covenant  on  Civil  and  Political  Rights.  These  rights 
apply  to  citizens  as  much  as  to  non-citizens.  Article  5(2)  provides  that  everyone 
who is arrested must be informed promptly in a language which he understands of 
the reasons for his arrest and the charges against him. 

Yet,  as  the  Status  Quaestionis  study  concluded,  "…  [the  survey]  shows  that 
sufficient legal interpreting and translation skills and structures are not yet in place 
to  meet  the  goals  that  all  individuals,  irrespective  of  language  and  culture,  have 
their procedural rights respected in each Member State"23. This conclusion is based 
on an assessment using various indicators by the project and ranking 14 Member 
States' performance on a scale from 0 to 100, i.e. from low to high. In half of the 
Member States, the survey concluded, compliance with the rights to interpretation 
and translation is low. 

The existing standards under  international  law  are  unevenly  complied  with,  even 
in the European Union24. If someone is subject to criminal proceedings in another 
Member State, there is risk that that person will not be treated in the same manner 
as nationals would be. Hence the growing perception, as evinced by articles in the 
press  (e.g.  the  "Planespotters"  case25  or  the  Michael  Shields  case26),  that  foreign 
suspects will not receive justice.  

Over  the  years,  many  similar  cases  have  been  brought  to  light  by  organisations 
such  as  Fair  Trials  International  (http://www.fairtrials.net)  and  by  the  national 
reports of the Committee for the Prevention of Torture27 (http://www.cpt.coe.int). 
This  perception  of  unfair  treatment  can  be  for  a  variety  of  reasons  such  as  not 
having the cultural and legal knowledge of another country to understand what is 
going  on  and  to  assert  one's  rights,  and  not  understanding  the  language  of  the 
proceedings28.  The  following  cases,  both  investigated  recently  by  Fair  Trials 
International,  illustrate  the  difficulties  faced  by  suspects  involved  in  criminal 

Status Quaestionis: Questionnaire on the Provision of Legal Interpreting and Translation in the EU, 
AGIS project JLS/2006/AGIS/052 – by Erik Hertog and Jan Van Gucht, pages 2 and 189 

See applicable national provisions and practices at pages 35-52 of the Study Procedural Rights 
See  case  description  at  http://www.guardian.co.uk/world/2001/nov/18/greece  and  follow-up  at 
http://groups.yahoo.com/group/balkanhr/message/4810 ; 
See case description at http://www.freemichaelshields.com/ 
For example, the 2007 CPT report on Greece states (paragraph 42): "As was the case in 2005, many 
persons  in  police  detention  complained  that  they  had  not  been  informed  about  their  rights.  In  the 
holding  centres  for  aliens,  similar  allegations  were  made;  where  information  sheets  had  been 
distributed, detainees stated that they were in a language they could not understand and their content 
had  not  been  explained  to  them."  As  a  result,  the  CPT  noted  in  general  that  "Rights  for  persons 
deprived of their liberty will be of little value if the persons concerned are unaware of their existence. 
Consequently, it is imperative that persons taken into police custody are expressly informed of their 
rights without delay and in a language which they understand. In order to ensure that this is done, a 
form setting out those rights in a straightforward manner should be systematically given to persons 
detained by the police at the very outset of their custody. Further, the persons concerned should be 
asked  to  sign  a  statement  attesting  that  they  have  been  informed  of  their  rights",  see  The  CPT 
standards, "Substantive" sections of the CPT's General Reports, CPT/Inf/E (2002) 1, Rev. 2006 
See  references  to  FTA  cases  also  in  UK's  Parliament  enquiry  into  Procedural  Rights  at  : 
http://www.parliament.the-stationery-office.co.uk/pa/cm200607/cmselect/cmhaff/76/7606.htm#n149 

35. 

36. 

37. 

23 

24 
25 

26 
27 

28 

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proceedings  abroad.  Here,  we  have  deleted  the  names  and  the  Member  States 
concerned since the aim is to illustrate the problem rather than to draw attention to 
any Member States in particular.  

Case 1 – RD 

RD  is  a  national  of  Member  State  A  who  was  arrested  in  October  2005  by  the  Tourist 
Police  in  Member  State  B.  He  is  a  semi-retired  computer  programmer  and  computer 
programming teacher. He also works as a consultant, developer and teacher. He has been 
disabled  since  contracting  West  Nile  Virus  two  years  ago.  He  moved  to  Member  State  B 
with his wife in January 2005. 

In  October  2005,  the  tourist  police  came  to  his  house  and  questioned  him  about  some 
emails  advertising  pharmaceuticals.  They  suspected  him  of  having  sent  them.  The 
policemen would not identify themselves, refused to advise him of his rights or show any 
search  warrant.  They  did  show  him  three  email  printouts  which  did  not  include  enough 
information  to  trace  them.  Two  of  the  emails  appeared  to  come  from  one  of  the  world's 
leading  marketing  information  companies,  based  in  the  US.  The  email  was  clearly  not 
actually sent by them and in any event, RD has no connection to this company. The other 
email was from RD to a lady who is a national of Member State B. There was no mention 
of any pharmaceuticals. 

The police arrested RD and took his computer. He did not have to go to prison on account 
of  his  poor  health.  The  next  day  he  read  in  the  local  paper  "national  of  Member  State  A 
arrested for drug trafficking" (RD is the only national of Member State A in the area) and 
that the tourist police had arrested a key figure in an international drug trafficking ring. It 
has become apparent that the person who complained to the police did so after meeting RD 
, as she and two of her friends then began to receive 'spam' emails offering pharmaceutical 
drugs.  The  emails  do  not  appear  to  come  from  or  lead  to  RD,  his  websites  or  his  email 
address. They bear no relation to RD's enterprises. This case has to be seen in connection 
with  strict  law  enforcement  in  Member  State  B  concerning  technology.  In  2002,  the 
authorities of Member State B passed a law banning all electronic games, in an attempt to 
stamp  out  illegal  gambling.  The  law  resulted  in  internet  cafes  being  closed  down  and 
people playing games on their mobile phones been sent to jail for a year. 

Fair trial issues 

1. 

2. 

3. 

When  RD  was  interviewed,  no  lawyer  was  present.  He  was  told  that  he  did  not 
need a lawyer and that the police had not come to arrest him. 

RD was forced, under threats of being imprisoned, to sign a document which 
he did not understand as it was not in his language. 

More than a month after taking his computer, the authorities still had not requested 
any information regarding the administrator password, which they would need to 
access all the information on the computer. 

FTA Case 2 – MW 

EN 

14 

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MW is a 48-year-old citizen of Member State A. He is a self-employed carpenter. On 10 
November 2003, he was arrested in Member State B on a stopover on his way home from a 
holiday in Brazil and was charged with trafficking cocaine. On 22 April 2004 he was found 
guilty and sentenced to 6 years in prison. MW had checked his bags in at Sao Paulo airport 
and did not expect to have any contact with them until arriving at his destination in Member 
State A. He had no hand luggage and carried only a book to read on the flight. 

When  MW  was  arrested,  he  was  taken  into  an  interrogation  room  and  shown  one  of  his 
bags,  which  lay  on  a  table  with  all  identification  tags  missing.  He  was  asked  to  open  the 
bag and when he did so, he found that his clothes were in disarray but nothing was actually 
missing.  In  the  bag  was  a  folder  containing  many  forms  of  identification  (credit  cards, 
cheque  books  etc.).  Then  he  was  shown  a  large  package  which  had  allegedly  been  in  his 
bag. He refused to hold or touch this package to avoid leaving his fingerprints on it. Police 
later claimed that they had found two smaller packages in his bag as well. 

While  being  interrogated,  MW  informed  the  officers  of  his  other  checked-in  baggage, 
which they retrieved. This bag still had all its security tags and labels attached and no drugs 
were  found  in  it.  Both  the  drugs  and  the  bag,  in  which  they  had  supposedly  been  found, 
were  said  to  have  been  destroyed  before  the  case  came  to  trial.  Only  photographs  of  the 
packages allegedly containing drugs and the bag itself were produced in court. A witness 
claimed that he had found the bag abandoned in the airport. 

During  the  trial,  the  prosecutor  portrayed  MW  as  a  "career  criminal",  which  is  entirely 
untrue.  The  judge  was  presented  with  an  Interpol  record  stating  that  MW  is  a  valued 
member of the community, however he chose not to take accept this letter as evidence. MW 
was offered a reduced 5 year sentence if he admitted his guilt, which he refused. He was 
found  guilty  and  appealed;  however  the  sentence  was  not  changed.  A  further  appeal  has 
been  submitted  to  the  Supreme  Court.  If  this  fails,  there  will  be  an  application  to  the 
European Court of Human Rights. 

Fair trial issues 

1. 

2. 

3. 

4. 

MW was denied access to both a lawyer and to consular officials despite several 
requests in the days following his arrest.  

His  request  to  have  the  contents  of  his  two  suitcases  weighed,  in  order  to  be 
compared with the weight of the suitcases when they were checked in Sao Paolo, 
was refused without explanation.  

At  his  first  court  appearance,  he  had  not  slept  for  over  50  hours.  He  was  only 
allowed five minutes with his court-appointed lawyer, who did not speak his 
native  language  .  At  this  hearing  the  prosecution  told  the  court  that  MW  was 
found  in  possession  of  3  plastic  packages  containing  cocaine,  hidden  inside  his 
suitcase.  MW  was  not  able  to  refute  this  statement  because  nothing  was 
translated for him. The translator told him that as she was employed by the court, 
she was only allowed to speak on the court’s instructions.  

The  judges  allowed  the  prosecutor  to  guide  his  two  witnesses  through  their 
statements.  Both  witnesses  had  been  in  the  courtroom  from  the  beginning,  and 
again no part of their statements or the evidence they gave was translated for MW, 

EN 

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5. 

6. 

38. 

39. 

40. 

making  it  impossible  for  him  to  instruct  his  lawyer  for  cross-examination.  The 
judge  also  refused  to  admit  statements  MW  submitted  because  they  were  in  his 
native  lanagueg.  No-one  was  available  to  translate  them  into  the  language  of  the 
court. The judge did not suspend the trial in order to have them translated.  

There was no forensic evidence to confirm that the packages contained drugs.  

Defence counsel did not attend the sentencing hearing on 29 April 2004. MW took 
the opportunity to submit his own statements, which he had had translated into the 
language of the court. The judges refused to admit these statements, deeming them 
to have been submitted too late.  

Insufficient  provision  of  interpretation  and  translation  in  criminal  proceedings  is 
one of the immediate problems faced by citizens who find themselves arrested, and 
possibly  charged,  with  a  criminal  offence,  in  a  country  in  which  they  do  not 
understand the language. They are at a disadvantage in relation to a national of that 
country. As the above cases illustrate, the right to understand the proceedings, in 
particular the right to interpretation and translation is a fundamental right for any 
suspect  involved  in  criminal  proceedings  and  may  influence  the  extent  to  which 
other rights to a fair trial may be effectively exercised by the suspect.  

Preliminary findings of the Maastricht/Ghent study also show that suspects who do 
not  speak  or  understand  the  language  of  the  proceedings  are  at  a  clear 
disadvantage. The scope of the right to interpretation and translation extends to all 
parts of criminal proceedings. The interpretation must be sufficient in quality and 
scope  as  outlined  by  the  ECtHR  in  the  Kamasinksi  case  (A168)  76-77  (19 
December 1989). Although not explicitly mentioned in the ECHR, the right to free 
translation of documents which the defendant needs to understand in order to have 
a fair trial is established in ECtHR case law.  

The  Effective  Criminal  Defence  Rights  in  Europe  Project29  finds  that  as  regards 
translation and interpretation of the proceedings, none of the countries studied so 
far (Belgium, Hungary, England and Wales) have specific regulations or standards 
for  persons  acting  as  interpreters  and  translators  in  criminal  proceedings  or 
mechanisms to safeguard quality of interpretation. In Belgium, the defendant must 
sign  to  certify  that  the  translation  was  adequate  but  cannot  know  whether  it  was 
adequate  or  not.  In  Belgium  and  in  England  and  Wales  there  are  no  sanctions  if 
interpretation or translation is not provided. Owing to a restrictive interpretation of 
the  law  by  the  Supreme  Court,  in  Belgium  the  right  to  translation  of  procedural 
documents  applies  only  to  mono-  or  bilingual  Belgians  or  to  those  whose  native 
language  is  one  of  the  three  official  Belgian  languages.  In  England  and  Wales, 
there  is  no  procedure  for  determining  whether  translation  is  necessary,  for 
arranging translation or for determining who bears the cost.  

41. 

As no standards exist, Member States do not keep statistics about cases in which 
suspects were unable fully to understand the proceedings. It is therefore difficult to 
assess the proportion of cases in which the right to interpretation and translation is 

29 http://www.unimaas.nl/default.asp?template=werkveld.htm&id=TTMXXC75LEDL3C10XH3X&taal=en 

EN 

16 

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not  respected.  People  who  are  prosecuted  in  proceedings  in  which  they  do  not 
understand the language and are not given the help of a translator or interpreter are 
in  a  vulnerable  situation  and  may  not  be  aware  of  their  right  to  bring  an  action 
before  the  European  Court  of  Human  Rights.  Complaints  received  by  the 
to  cross-border  criminal 
European  Commission 
proceedings seem to confirm that many of the cases where interpretation was not 
provided were not referred to the ECHR. In cases where an application is made to 
the  ECHR  on  the  ground  that  translation  or  interpretation  was  insufficient,  it  is 
often rejected by the Court if on balance the ensuing proceedings were not unfair 
as  such.  For  example,  the  European  Court  of  Human  Rights  has  rejected  MW's 
application. 

from  citizens  subjected 

Problem 3 - Individuals surrendered under the EAW are excluded from rights under Article 
6 ECHR 

42. 

The  EAW  raises  a  specific  problem.  The  generally  held  view  by  human  rights 
practitioners is that extradition cases within the EU are excluded from the ambit of 
Article 6 of the ECHR30. This is because Article 6 ECHR confers rights that apply 
during  "criminal  proceedings";  the  extradition  proceedings  are  not  part  of  the 
ordinary criminal proceedings. Thus a person surrendered under a EAW who has 
not had the benefit of legal advice and/or interpretation in respect of the hearing in 
the executing State does not have a remedy at the ECtHR, but is left with the sole 
option of pursuing a domestic remedy in the country where he or she was arrested 
(and  generally  he  no  longer  finds  himself  there  since  he  has  been  surrendered  to 
another  country  for  the  criminal  proceedings  proper).  The  following  chart 
illustrates the number of cases that are potentially affected: 

EAWs 

Issued 

Persons 
arrested 

traced 

and/or 

Surrendered 

Nationals 
prosecution 

surrendered 
in 

for 
another 

2005

6900

1770

1530

20% 

200631 

6750 

2040 

1890 

25% 

200732 

11.000 

4200 

3400 

30 d) Expulsion and extradition  

25. Procedures for expulsion of aliens do not belong to the criminal sphere of Article 6, notwithstanding the 
fact that they may be brought in the context of criminal proceedings (Maaouia v. France [GC], no. 39652/98, 
§ 39, ECHR 2000 X). The same exclusive approach applies to extradition proceedings (Peñafiel Salgado v. 
Spain (dec.), no. 65964/01, 16 April 2002). See ECHR, Key case-law issues, COMPATIBILITY RATIONE 
MATERIAE, ARTICLE 6, (NOTION OF “CRIMINAL CHARGE”): 

31 11371/4/07 rev 4; BE, DE, IT et SE n'ont pas fourni leurs données  

32 10330/3/08 rev 3; BE, BG et IT n'ont pas fourni leurs données.  

EN 

17 

   EN 

 
 
                                                 
 
 
Member State 

Breach of 90 days time limit 
(number of cases) 

80 

122 

43. 

Problems in the area of interpretation and translation are highlighted by the mutual 
evaluation reports33 adopted by the Council of the European Union on the EAW. 
Several reports stress the difficulty to comply with the short deadlines imposed by 
the  legislation  transposing  the  Framework  Decision  on  the  EAW  and  surrender 
procedures34. 

SECTION 4:  THE NEED FOR ACTION AT EU LEVEL  

How would the problem evolve all things being equal?  

44. 

The ULB study (see paragraph 24(2) and footnote 11) found that the efficiency of 
mutual recognition measures was being hampered by inadequate levels of mutual 
trust.  As  further  mutual  recognition  instruments  come  into  force,  this  may  be 
exacerbated.  Current  EU  initiatives  which  could  have  a  positive  impact  on  the 
situation  centre  largely  on  the  promotion  of  networks  of  legal  professionals  and 
funded projects to help create trust. The Commission gives grants to the European 
Judicial  Training  Network,  to  the  European  Judicial  Network,  to  the  European 
Network  of  Councils  of  the  Judiciary,  to  the  European  Criminal  Bar  Association 
and  to  Victim  Support  Europe.  These  networks  all  bring  legal  professionals 
together.  Contacts  of  this  type  can  promote  trust  since  once  judges  and  lawyers 
have met their counterparts from other EU Member States and learned about their 
criminal  justice  systems,  they  may  have  more  faith  in  the  operation  of  their 
systems, despite the differences. These networks do not have a direct impact on the 
experience of citizens who find themselves charged with crimes in Member States 
other than their own, nor do they in themselves give Member States the incentive 
to prioritise rights35.  

45. 

Without  appropriate  standards  to  protect  the  rights  of  suspects  to  understand 
proceedings and receive translation in cross-border 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 
European Union. This problem has become significant with the increasing number 
of  people  involved  in  such  proceedings.  The  overall  trend  indicates  continued 

33  Most  reports  can  be  found  at:  http://www.ulb.ac.be/iee/penal/mutualrecognition/national.htm  or  at 

http://www.eurowarrant.net/index.asp?c_nr=7 

34 See Evaluation report on the Fourth round of mutual evaluations "the practical application of the European 
arrest warrant and corresponding surrender procedures between member states", Report on Denmark, COPEN 
106, page 14;  and Report on Lithuania, COPEN 121, page 29.   

35 Articles 47-50 of the CFREU provide for fair trial rights but what is meant by these rights is not set out 

anywhere. 

EN 

18 

   EN 

 
 
                                                 
 
 
increases in the number of non-nationals charged with criminal offences in the EU 
(see Annex 5). 

46. 

The  Lisbon  Treaty  would  bring  about  a  substantial  change  in  this  area,  in 
particular by creating a specific legal base for EU legislation on procedural rights. 
Article 82(2)c of the Lisbon Treaty provides a legal base for the approximation of 
laws,  i.e.  establishing  minimum  rules,  in  the  area  of  "the  rights  of  individuals  in 
criminal  procedure"  by  means  of  directives  adopted  in  accordance  with  the 
ordinary  legislative  procedure.  This  means  that  the  possibility  of  a  blocking 
minority  is  much  reduced.  One  or  more  of  the  Member  States  which  led  the 
opposition to the proposal, would be able to opt out of any new proposal under the 
Lisbon Treaty. 

EU right to act /subsidiarity 

47. 

48. 

49. 

The subsidiarity principle is intended to ensure that decisions are taken as closely 
as possible to the citizen. The principle of subsidiarity is defined in Article 5 of the 
Treaty  establishing  the  European  Community.  Specifically,  it  is  the  principle 
whereby the Union does not take action (except in the areas which fall within its 
exclusive  competence)  unless  it  is  more  effective  than  action  taken  at  national, 
regional or local level. It is closely bound up with the principles of proportionality 
and  necessity,  which  require  that  any  action  by  the  Union  should  not  go  beyond 
what  is  necessary  to  achieve  the  objectives  of  the  Treaty.  The  Treaty  of 
Amsterdam  incorporated  the  Protocol  that  requires  a  systematic  analysis  of  the 
impact of legislative proposals on the principle of subsidiarity and proportionality. 

To  date,  the  Member  States  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. It has also led to speculation about 
standards in other Member States and on occasion there have been accusations of 
deficiencies  in  the  criminal  justice  system  of  one  Member  State  in  the  media  of 
another. EU action in this area would therefore be required and could include the 
adoption of common minimum standards as an accompanying measure in an area 
of free movement of persons.  

The right to a fair trial constitutes a fundamental right which the European Union 
respects  as  a  general  principle  under  Article  6  (2)  TEU36.  Member  States  must 
respect  fundamental  rights  when  they  are  acting  within  the  scope  of  Community 
and  Union  law.  This  requirement  is  not  only  explicitly  provided  for  in  all  'third 
pillar' legal instruments, but is also recognised by the case-law of the ECJ. The EU 
by  way  of  legislation  could  clarify  the  legal  obligation  of  MS  to  comply  with 
Article 5 ECHR (informing arrested persons in a language they understand of the 
reasons for the arrest and the charges against them) and to guarantee the right to a 

36 Case C-308/07 P Koldo Gorostiaga Atxalandabaso, 19 February 2009, para. 41 with further reference to 
Case C-305/05 Ordre des barreaux francophone et germanophone and Others [2007] ECR I-5305, 
paragraph 29, and Joined Cases C-341/06 P and C-342/06 P Chronopost and La Poste v UFEX and 
Others [2008] ECR I-0000, paragraph 44. 

EN 

19 

   EN 

 
                                                 
 
fair  trial  in  the  context  of  EU  criminal  law.  Such  a  measure  could  make  these 
rights and obligations more visible for EU citizens and public authorities. 

SECTION 5: OBJECTIVES 

50. 

51. 

The general objective is to increase mutual trust to allow better application of the 
mutual  recognition  principle,  which  is  the  cornerstone  of  the  EU  judicial  area.  
Through  increased  mutual  trust,  existing  European  Union  instruments  on  mutual 
recognition in criminal matters can be expected to work better and to have a real 
added  value  compared 
inter-governmental  cooperation 
traditional 
instruments of extradition and mutual legal assistance. 

the 

to 

The  above  general  objective  can  be  translated  into  the  following  specific 
objectives: 
to provide common minimum standards for procedural rights in all criminal 
1) 
proceedings, including extradition (which is very rare within the EU now) and the 
EAW; 
and 
2) 
to ensure that suspects, whether EU citizens or not, are informed of how they 
can benefit from these common minimum standards wherever they are within the 
European Union.  

SECTION 6: DESCRIPTION OF POLICY OPTIONS 

52. 

The five options for addressing these objectives are set out below. 

Option 1: Status quo  

53. 

If no further EU action is taken, the situation could be expected to evolve as set out 
above (see Section 4 above). This option is based on the assumption that Member 
States  are  at  any  rate  expected  to  comply  with  the  ECHR  and  provide  minimum 
safeguards at least in domestic legal proceedings. That obligation remains whether 
the EU takes action or not. 

Option 2:  Promotion of non-legislative measures (best practices) 

54. 

The 2004 proposal for a Framework Decision would be withdrawn and measures 
would  be  taken  to  promote  the  sharing  of  national  best  practices  and  developing 
EU  guidelines  on  various  aspects  of  procedural  rights  (training,  provision  of 
information  about  rights,  dissemination  of  ECtHR  case-law  and  obligations 
stemming from the case-law, exchange of registers for interpreters and translators 
competent to work in another EU Member State, electronic networking for defence 
lawyers).  This  option  is  based  on  the  recognition  that  compliance  with  ECHR 
standards on fair trial rights is not fully achieved by all EU member States. This 
option would seek a better awareness of the ECHR standards by disseminating and 
recommending practices which help compliance with the ECHR. As such, it would 
not  achieve  any  further  approximation  of  legal  standards.  Should  this  option  be 
taken,  the  following  recommendations  could  be  included  in  a  document  on  best 
practices: 

EN 

20 

   EN 

 
•  Member  States  should  provide  information  to  citizens  and  practitioners  on 
judgments  of  the  European  Court  of  Justice  and  of  the  European  Court  of 
Human  Rights  in  Strasbourg  concerning  minimum  standards  of  procedural 
rights in criminal proceedings, including the translation of suitable into official 
languages and their subsequent publication and dissemination, in particular on 
Internet homepages of the police and judicial authorities, to increase awareness 
of  the  European  Convention  for  the  Protection  of  Human  Rights  and 
Fundamental Freedoms, 

•  Member States should have available, and use, in their police stations, a Letter 
of  Rights  drafted  in  all  the  languages  of  the  European  Union,  listing  the 
essential rights of a person concerned.  

•  Member  States  should  develop  suitable,  effective  national  standards  for 
interpretation  services  (including  sign  language  interpretation)  in  criminal 
in 
proceedings;  organise 
appropriate institutions. 

interpreters  and 

training  for 

translators 

legal 

•  Member  States  should  have  a  system  of  accreditation/certification  for 
translators  and  interpreters  employed  in  criminal  proceedings  and  ensure  that 
only  accredited  or  certified  translators  and  interpreters  are  used  in  criminal 
proceedings.  

•  Member States should operate a registration scheme for accredited or certified 
translators and interpreters whereby registration is reviewed [every 5 years] so 
as  to  encourage  professionals  to  keep  their  language  skills  and  knowledge  of 
court procedures up to date in order to renew their registration. 

•  Member  States  should 

institute  a  system  of  Continuous  Professional 
Development, so that legal translators and interpreters can keep their skills up 
to date. 

•  Member  States  should  adopt  a  Code  of  Ethics  or  Conduct  and  Guidelines  for 
Good  Practice,  which  should  be  the  same  or  very  substantially  similar 
throughout the European Union. 

•  Member  States  should  ensure  that  a  mechanism  is  in  place  to  ensure  quality 

control of the translation and interpretation used in criminal proceedings.  

•  Member States should ensure that a mechanism is in place to ensure that there 
is  a  minimum  standard  of  remuneration  for  translation  and  interpretation  in 
criminal proceedings. 

Option 3: New instrument covering all rights 

55. 

Withdrawing  the  failed  proposal  for  a  Framework  Decision  and  reintroducing  a 
proposal  for  a  new  instrument  requiring  Member  States  to  provide  minimum 
standards of procedural rights in a comprehensive manner, including standards on 
the right to information about one's rights (Letter of rights), access to legal advice 
and  legal  aid,  access  to  interpretation  and  translation,  protection  for  vulnerable 

EN 

21 

   EN 

 
suspects  and  communication  with  consular  authorities  and  with  family  or 
employers. This option is based on the assumption that the 2004 proposal was the 
appropriate instrument to approximate legal provisions in the Member States and 
that  this  legislation  is  still  necessary  with  regard  to  the  various  aspects  of 
procedural rights it had covered. It further assumes that the factors that have led to 
the failure of the 2004 proposal are no longer there. 

56. 

For this option to succeed, a new treaty with an explicit legal base and a different 
(ordinary  community  law)  legislative  procedure  would  be  required.  While  a  new 
treaty would not resolve the problem of mutual trust in itself, it would facilitate the 
legislative  process  in  the  area  of  procedural  rights.  If  legislation  is  successfully 
adopted, its subsequent implementation by Member States and monitoring by the 
European Commission – as well as, ultimately, by the European Court of Justice – 
will  help  overcome  the  differences  in  compliance  with  the  ECHR.  Practical 
measures,  including  those  referred  to  previously  (see  section  4)  may  still  be 
necessary to enhance mutual trust at practical level. 

Option 4: Legislative measures restricted to the cross-border cases  

57. 

58. 

As  option  3,  provision  of  the  same  range  of  rights  but  restricted  to  cross-border 
cases  only.  It  is  based  on  a  gradual  step-by-step  approach,  tackling  what  some 
consider to be the most important situation to address, namely cross-border cases, 
and in particular EAW cases. Proceeding with 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 will need careful 
consideration  so  that  any  potential  issue  of  discrimination  between  categories  of 
suspects  involved  in  cross-border  versus  domestic  proceedings  is  addressed 
appropriately. 

There  is  no  internationally  recognised  legal  definition  of  "cross-border  cases". 
Cases would generally involve several countries. This would be usually related to 
the  fact  that  the  national  of  one  country  is  suspected  of  committing  an  office  in 
another country, a situation which could give rise to investigation, prosecution and 
trial in at least one of those countries and the use of cooperation instruments and 
procedures,  such  as  an  EAW.  The  arrest  and  subsequent  surrender  of  a  person 
following an EAW from one EU member State to another would clearly qualify as 
a cross-border case. 

Option  5:  Step-by-step  approach  beginning  with  legislative  measures  on  access  to 
interpretation and translation services 

59. 

Withdrawing the current proposal for a Framework Decision and proposing a new 
Framework Decision requiring Member States to provide minimum standards only 
for access to interpretation and translation services. The 2004 proposal contained a 
number  of  rights  some  of  which  were  more  controversial  than  others.  More 
controversial rights, such as the right to legal advice, have been discarded at this 
stage because of concerns as to their political feasibility and uncertainty as to their 
costs to Member States.  

EN 

22 

   EN 

 
60. 

This option would confirm that the right of access to a competent interpreter and 
translation  of  the  key  documents  is  fundamental  so  that  the  accused  knows  the 
charges against him and understands the procedure. The suspect or defendant must 
be  in  a  position  to  understand  of  what  he  is  accused.  For  that  purpose,  Member 
States  must  ensure  that  there  are  enough  competent  and  qualified  translators  and 
interpreters  to  safeguard  the  full  application  of  this  right  within  their  criminal 
justice  systems.  There  should  be  training,  not  only  linguistic  but  the  necessary 
legal training, available to these professionals.  

61. 

The  legislative  proposal  –  a  Framework  Decision  -  to  be  put  forward  under  this 
option would contain the following provisions: 

•  Scope of application: The proposal would lay down rules concerning the rights 
to  translation  and  interpretation  in  criminal  and  European  Arrest  Warrant 
proceedings.  It  would  also  include  any  appeal  from  these  proceedings.  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  of  a  Member  State  that  he  is  suspected  of  having  committed  a 
criminal offence until finally judged.  

•  The right to interpretation: Member States would be required to ensure that a 
suspected  person  who  does  not  understand  the  language  of  the  proceedings  is 
provided  with  interpretation  in  order  to  safeguard  the  fairness  of  the 
proceedings.  Further,  Member  States  would  need  to  ensure  that,  where 
necessary,  legal  advice  received  throughout  the  criminal  proceedings  is 
interpreted for the benefit of the suspected or accused person receives. 

•  Member States to meet the costs of interpretation and translation: Member 
States would be required to cover the costs of interpretation during any police 
questioning,  during  all  necessary  meetings  between  the  suspected  or  accused 
person  and  his  lawyer,  during  all  court  hearings  and  during  any  necessary 
interim hearings. Similarly, they would have covered the costs of translation of 
the relevant documents. 

•  The  right  to  translation  of  relevant  documents:  Member  States  would  be 
required to ensure that a suspected or accused person who does not understand 
the  language  of  the  proceedings  is  provided  with  translations  of  all  relevant 
documents in order to safeguard the fairness of the proceedings. The documents 
to be translated should include the detention order depriving the person of his 
liberty,  the  charge/indictment,  essential  documentary  evidence  on  which  the 
prosecution  case  is  based  and  the  judgment.  Any  decision  about  further 
translation  should  be  taken  by  the  competent  authorities.  The  suspected  or 
accused person’s lawyer could ask for translation of further documents. Where 
documents  put  forward  in  evidence  are  not  in  a  language  understood  by  the 
suspected  or  accused  person,  translations  of  such  documents  will  be  made 
available to the suspected or accused person. 

•  Member  States  to  ensure  training:  Member  States  would  be  required  to 

ensure adequate training.  

EN 

23 

   EN 

 
62. 

63. 

This option could vary in its scope and provide for these two rights to apply either 
a) 
above) 
b) in all cases (see possible definition above) 

cross-border 

definition 

possible 

cases 

only 

(see 

in 

At  a  later  date,  and  once  the  first  proposal  on  interpretation  and  translation  was 
adopted, further individual proposals could be put forward to cover the following 
rights:  the  right  to  information  on  rights  and  to  information  about  the  charges 
(Letter  of  Rights),  the  right  to  legal  aid  and  legal  advice,  the  right  for  a  person 
deprived  of  his/her  liberty  to  communicate  with  relatives,  employers  and  with 
consular authorities and special safeguards for vulnerable persons. A Green Paper 
on  the  Right  to  Review  of  the  Grounds  for  Detention  would  also  be  part  of  the 
package.  

SECTION 7: ANALYSIS OF IMPACTS OF POLICY OPTIONS 

Option 1 - Status quo: 

64. 

65. 

66. 

There are no discernible or measurable economic or environmental impacts of the 
status quo option. There is no expected positive impact under this option. Rather 
the  contrary:  lack  of  action  by  the  EU  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. 

In terms of social impacts, the status quo option could, over time, lead to greater 
lack  of  trust  between  Member  States  since  it  is  foreseeable  that  an  increasing 
number  of  their  nationals  will  be  involved  in  criminal  proceedings  in  other 
Member States. When there are cases that are perceived in one country as a failure 
of justice in another (such as the recent Michael Shields case between the UK and 
Bulgaria)  this  affects  the  trust  between  not  only  the  judicial  authorities  of  the 
relevant  countries,  but  also  ordinary  citizens  who  read  about  these  cases  in  the 
press. Failure to take action at EU level could also undermine the positive example 
it  has  provided  to  third  countries.  For  example  when  the  Commission's  2004 
proposal  was  adopted  by  the  Commission,  Turkey  was  amending  its  Code  of 
Criminal  Procedure.  It  included  in  the  new  version  a  provision  for  a  Letter  of 
Rights,  which  was  a  right  set  out  in  the  Commission  proposal  as  Turkey 
understood this to be "the EU standard", even though the Letter of Rights, as part 
of the 2004 Framework Decision, was never adopted in the Council.  

This option would mean that barriers to a fair trial because of lack of interpretation 
and  translation  remain.  There  would  continue  to  be  unfair  access  to  justice  for 
accused persons who do not understand the language of the criminal proceedings. 
In  addition,  this  option  could  in  entail  continued  supplementary  costs  for  the 
citizens involved in cross-border criminal proceedings who require the assistance 
of defence lawyers specialising in such cases, in particular where such assistance is 
not automatically provided by member States or not throughout the proceedings.  

Option 2 - Best practice: 

EN 

24 

   EN 

 
67. 

68. 

69. 

There are no discernible or measurable economic or environmental impacts of the 
best  practice  option.  Socially,  the  best  practice  option  could  have  some  impact 
since there would be some improvement in practice in the provision and training of 
interpreters  and  translators  which  should  eventually  contribute  to  improving 
mutual trust. 

Positive  impacts:  recommendations  for  best  practice  could  result  in  some 
improvements  if  Member  States  chose  to  follow  the  recommendations.  It  could 
also have a filter through effect on third countries emulating EU standards. Over 
time, this could be expected to have a greater impact if more Member States (and 
third  countries)  choose  to  adopt  the  recommended  practices.  The  social  groups 
most affected would be legal professionals (judges, prosecutors and lawyers), legal 
interpreters  and  translators  and  other  auxiliary  staff  in  these  two  professions  and 
accused  persons  themselves.  If  Member  States  followed  the  recommendations  it 
would  enhance  access  to  justice  for  citizens.  Such  a  non-legislative  instrument 
would  allow  scope  for  provisions  on  training,  accreditation  and  certification, 
keeping  a  register  and  laying  down  a  code  of  ethics.  These  have  all  been 
recommended  by  the  Reflection  Forum  on  Multilingualism  and  Interpreter 
Training.  

Negative  impacts:  much  of  this  proposal  echoes  what  the  Council  of  Europe 
includes in Recommendations and what other experts have advised, but which has 
not been carried out. There will therefore be a risk that this further guidance will 
not  be  implemented.  This  option  may  also  disappoint  the  EP,  stakeholders  and  a 
number  of  Member  States  who  have  long  called  for  a  binding  instrument  in  this 
area  which  Member  States  must  implement  and  is  subject  to  the  Commission's 
scrutiny.    The  cost  of  implementing  the  guidance  cannot  be  anticipated  with  any 
accuracy,  because  it  will  depend  entirely  on  the  methods  adopted  by  individual 
Member States. However, such figures as are available could be useful to give an 
order  of  magnitude.  See  table  6  in  Annex  5  –  which  is  a  summary  of  the  Status 
Quaestionis  study.  For  those  Member  States  that  do  not  run  any  courses  for 
interpreters  and  translators  in  order  to  enable  them  to  specialise  in  legal 
interpreting (or even any courses at all for people wanting to become interpreters 
and translators), the first costs to take into account will be the costs of establishing 
courses.  The  report  of  the  Reflection  Forum  on  Multilingualism  and  Interpreter 
Training  recommends  that  Member  States  "provide  appropriate  training  in  legal 
interpreting,  both  for  new  and  already  practising  legal  interpreters.  Such  training 
should lead to a nationally recognised professional certification and be accredited 
by  a  recognised  authority.  Efforts  should  be  made  to  develop  equivalent  training 
throughout the EU, making a quality label of the establishments offering training, 
the  exchange  of  materials,  trainers  and  best  practices,  and  a  compatible  register 
possible". 

70. 

to 

According 
the  Status  Quaestionis  study,  3  Member  States  provided 
interpretation  and  translation  of  a  higher  than  average  standard.  When  the 
Commission  asked  Ministries  of  Justice  for  information  on  these  costs,  four 
Member States were able to provide very rough costs. One was the UK. Since the 
UK  is  said  to  provide  a  quality  service,  UK  costs  will  be  set  out  here  as  a  very 
crude  indicator.  The  UK  Home  Office  (Better  Trials  Unit)  is  responsible  for 
overseeing  provision  of  translation  and  interpretation.  No  figures  were  given  for 

EN 

25 

   EN 

 
translation costs (and in fact no Member State provided these costs). In London, 7 
colleges run courses leading to the appropriate qualification. One college received 
a  one-off  £5,000  grant  to  enable  it  to  develop  the  course.  Students  (already 
qualified  interpreters)  have  to  pay  £200  tuition  fees  to  take  the  course.  The  first 
cost  to  take  into  account  will  therefore  be  of  running  a  sufficient  number  of 
courses  in  each  Member  States.  For  comparison,  the  figure  provided  by  IE  was 
€4.4 million for both interpretation and translation last year. 

71. 

72. 

The  cost  will  vary  from  one  Member  State  to  another,  depending  on  how  many 
colleges already offer suitable course or have departments that could offer suitable 
courses if asked to do so. It could be that around £5,000 would be enough to help 
these colleges develop suitable courses (but this figure seems very small). 

The Council of Europe has issued guidance on how to implement the ECHR, but 
the number of findings of violations in the ECtHR suggests that these are not fully 
adhered  to  by  Member  States.  The  objective  of  improving  mutual  trust  would 
therefore not be achieved by this option alone. 

Option 3. New instrument covering all rights. 

73. 

74. 

75. 

This option would involve proposing a Framework Decision along the lines of the 
Commission's  2004  proposal  in  its  original  form,  that  is  to  say  covering  several 
procedural  rights  in  criminal  proceedings  e.g.  legal  assistance,  access  to  legal 
advice, legal aid, interpretation and translation, Letter of Rights as set out above. 

Positive  Impacts:  a  Framework  Decision  of  this  sort  would  increase  the  level  of 
legal certainty among Member States. It would be a binding instrument improving 
compliance  with  ECHR  standards  to  ensure  a  fair  trial.  It  would  be  a  broad 
instrument encompassing many procedural rights and would mean that EU citizens 
could  be  sure  that  they  would  have  the  same  rights  in  other  Member  States  in 
criminal proceedings as they do in their own Member State (if it was adopted and 
implemented in all Member States). This would also have a significant impact on 
the level of mutual trust among Member States as practitioners would be reassured 
that  the  procedural  rights  covered  by  this  legislation  apply  throughout  the 
European  Union,  no  matter  where  the  proceedings  are  taking  place.  In  turn,  this 
could change the public's perception that justice abroad works differently than in 
one's own country. Ultimately, such legislation could benefit traditional freedoms 
in  the  European  Union,  such  as  the  freedom  to  move  to  and  settle  in  other  EU 
countries, whether for private residence or business purposes. 

Negative  impacts:  The  discussions  of  the  2004  proposal  showed  that  Member 
States tended to have problems with one or other right that formed part of the 2004 
package,  and  this  was  true  even  of  those  Member  States  that  agreed  with  the 
proposal  in  principle.  This  led  to  a  lesser  degree  of  support  overall,  and  to  a 
watering  down  of  provisions  to  suit  one  or  two  Member  States  on  each  right. 
Tackling rights together as part of a package means that there is less time to devote 
to  each  individual  right  and  that  watering  down  occurs  with  trade-offs  whereby 
one Member State will agree to a watering down in exchange for another Member 
State supporting their own suggestions for watering down a different part. This can 

EN 

26 

   EN 

 
76. 

lead  to  a  lower  standard  for  the  whole  package  than  if  each  right  is  negotiated 
individually as part of a single proposal. 

If  the  Lisbon  Treaty  comes  into  force,  unanimity  will  no  longer  be  required  in 
order to adopt legislation in the Council and the European Parliament would play a 
role in co-decision. Since 21 Member States supported the 2004 proposal and the 
European  Parliament  has  been  calling  for  a  measure  of  this  type  for  some  time, 
both these factors make it more likely that a broader instrument could be adopted. 
Yet, a treaty change in itself would not solve the problem of mutual trust among 
the  Member  States.  Trust  is  based  on  experience,  not  treaties.  In  that,  it  requires 
that Member States, practitioners and citizens have, over a longer period of time, 
positive  experience  with  each  other's  criminal  justice  systems  and  acquire  the 
belief  that  criminal  proceedings  in  other  member  States  do  not  entail  any 
additional risk for their citizens' procedural rights to a fair trial. This mutual trust 
will need legislation and practical measures alike.   

Option 4 - Framework Decision on cross border cases only: 

77. 

78. 

There  is  no  established  definition  of  a  "cross  border"  case.  If  the  accused  is  a 
foreigner, there is an obvious cross border element, but a case which seems purely 
domestic can become a cross border case if, for example, evidence or a witness is 
required  from  another  country,  if  assets  or  proceeds  of  crime  are  in  another 
country  or  if  it  transpires  during  the  proceedings  that  part  of  the  offence  was 
committed abroad (e.g. drug trafficking). Since these unforeseen developments can 
occur  at  any  stage  of  the  proceedings,  even  during  the  trial  (as  a  result  of 
unexpected  witness  testimony),  any  "purely  domestic"  case  can  become  a  cross 
border  case.  For  this  reason  there  is  reluctance  on  the  part  of  Member  States  to 
define a cross border case or to adopt legislation which necessitates a definition of 
cross border cases. 

An accused person who doesn't understand the language of the proceedings is at a 
disadvantage and therefore respect for fair trial safeguards are relevant especially 
those  concerning  interpretation  and  translation.  However,  this  is  not  only  a 
linguistic  problem;  there  are  also  cultural  aspects  since  a  foreigner  will  be 
unfamiliar with not only the language but also customs, traditions and the way in 
which  legal  proceedings  are  conducted.  There  are  various  rights  to  be  respected, 
but  an  additional,  and  necessary  first  "layer"  of  rights  for  the  foreign  accused 
person  is  that  interpretation  and  translation  is  provided  so  that  he  can  access  his 
other rights (such as legal advice, being informed about what he is accused of etc.). 
Therefore  fair  trial  rights  should  be  respected  for  all  accused  persons  by  all 
Member  States  but  without  the  first  step,  in  certain  Member  States  in  particular, 
fair  trial  rights  are  not  being  accessed  by  foreigners  owing  to  a  lack  of 
interpretation and translation. 

79. 

There  is  no  specific  research  on  the  number  of  cases  in  which  the  accused  is  a 
foreigner.  DG-JLS's  survey  of  ECtHR  case-law  suggests  that  at  least  10%37  of 
cases  before  the  ECtHR  involve  a  foreign  national.  Given  that  Article  6  ECHR 

37 See section 2, question 1(a) below. 

EN 

27 

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80. 

81. 

produces considerably more cases and findings of violation than any other article, 
it  is  clear  that  breaches  of  the  ECHR  are  occurring  in  all  Member  States.  These 
cases involve domestic as well as cross border cases. 

However,  the  Commission's  focus  at  the  moment is on the right to interpretation 
and translation. The majority of cases where a suspect or accused person will be in 
need of interpretation and translation will be cross border cases since those are the 
ones  in  which  it  is  most  likely  that  the  accused  person  will  not  understand  the 
language of the proceedings, by virtue of being a foreigner. 

The  economic  impact  of  this  option  would  be  twofold:  (1)  the  cost  of  services 
(lawyers, cost of State-funded lawyers, cost of translators and interpreters, cost of 
running a scheme to provide the services of interpreters and translators) and (2) the 
gain  in  reduced  costs  of  appeals  (including  appeals  to  the  ECtHR  for  failure  to 
meet  ECHR  standards).  These  costs  and  benefits  would  vary  so  much  from 
Member State to Member State that it is not possible to quantify38 accurately for 
any  one  Member  State,  since  this  would  depend  on  the  starting  point.  However, 
the expected economic impact would be clearly less important for this option than 
for option 3, since the obligation to provide interpretation and translation services 
would  be  limited  to  a  fraction  of  the  cases  dealt  with  by  national  judicial 
authorities39. The Status Quaestionis study for example shows that a few Member 
States are already implementing the type of training and provision envisaged here. 
Likewise for legal aid schemes, some Member States (UK, NL) have fully funded 
schemes whereas others (e.g. BE, ES) do not have a developed state-funded legal 
aid scheme in place (in BE, criminal legal aid is provided by trainee lawyers in the 
final stages of their training as part of the requirements to qualify, in Spain a limit 
is placed on state funded legal aid of 250 euro per case which means that people 
who  would  be  eligible  for  state  funded  legal  aid  in  other  Member  States  are 
required to pay for their defence or represent themselves). 

82. 

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 cases. In countries where there could be a 

38  An example of the difficulty is provided, in the area of civil law, in the "Study on the transparency of costs 
of civil judicial proceedings in the European Union", Final Report: "Costs relating to those resulting from the 
intervention of an interpreter, translator or an expert are follow closely lawyers’ fees in the level of regulation 
that pertains to them. In nearly half of the Member States (twelve), experts’ fees are freely determined by 
the  experts.  The  same  applies  to  translation  and  interpretation  fees.  It  is  thus  possible  to  draw  a  parallel 
between this observation and the results obtained for transparency. Indeed, the least regulated sources of fees 
are  those  which  appear  to  be  the  least  transparent.  (Page  54);  Although  the  access  to  law  and  courts  by 
anyone,  even  if  they  cannot  speak  the  language  of  the  Forum  State,  is  a  principle  recognized  by  national 
legislation, the costs of interpreters and translators are not usually regulated. In most countries, the fees are 
freely determined by both interpreters and translators. The criteria used to justify the differences in fees are 
usually the same". (page 196) 

39 See Annex 3 for more detailed figures on the costs of translation in civil proceedings (excerpt from Study 
on the transparency of costs of civil judicial proceedings in the European Union", Final Report pages 
198 – 201). 

EN 

28 

   EN 

 
                                                 
 
purely national case involving need for legal aid or interpretation and translation, 
there could be dissatisfaction on the part of a national who needs legal aid and/or 
interpretation but was not provided with it, if a foreigner in the equivalent situation 
would  receive  such  assistance.  An  instrument  conferring  rights  on  a  limited 
category of suspects and defendants, namely those involved in cross border cases, 
could therefore lead to a dual standard. This would have the opposite of the desired 
effect since certain accused persons would have more rights than others within a 
single Member State. 

83. 

84. 

Positive impact: this would satisfy the Member States that have been asking for a 
measure limited to cross border cases or arguing that this is the limit of the EU's 
competence. 

Negative  impact:  a  measure  which  attempted  to  restrict  its  scope  to  cross  border 
cases could lead to confusion since the same case can be described or classified as 
cross-border or as domestic by different Member States. There are no fixed criteria 
for defining a "cross border" case. The resulting differences in classification could 
possibly increase mistrust.  

85. 

Compliance: Member States could have difficulty in practice in classifying cases 
as "cross border" or "domestic" so mistakes/disputes would occur naturally.  

Option  5:  Step-by-step  approach  beginning  with  legislative  measures  on  access  to 
interpretation and translation services 

86. 

87. 

88. 

During  the  negotiations  on  the  2004  proposal,  it  has  become  clear  that  Member 
States have very different regimes both in relation to access to legal advice and of 
access  to  state-financed  legal  aid.  While  negotiations  failed  on  the  text,  one  area 
that  proved  to  be  less  problematic  was  that  of  access  to  interpretation  and 
translation  during  criminal  proceedings.  This  would  indicate  that  new  legislation 
could  be  more  successful  if  a  different,  step-by-step,  approach  was  followed, 
starting from an area of rights which is less controversial and progressing towards 
the more controversial ones. 

The  economic  impacts  of  this  option  would  be  twofold  as  above  for  the  cross 
border  option.  The  social  impacts  of  this  option  could  be  an  increase  in  mutual 
trust  since  the  judicial  authorities  of  each  Member  States  would  be  more 
comfortable surrendering nationals or transmitting evidence if they knew that their 
nationals would be assisted by an interpreter and a translator in the proceedings in 
the other Member State.  

At  the  national  level,  trust  would  be  increased,  as  the  justice  systems  would  be 
fairer and be perceived as more ECHR compliant. In addition, if a proposal on the 
right  to  interpretation  and  translation  were  perceived  as  a  first  step  towards 
building mutual trust with a commitment to examine the desirability of addressing 
other rights at a later stage, this would send out a positive message that the EU was 
addressing the problems encountered when the 2004 proposal failed in a realistic 
and  measured  way.  It  would  be  a  positive  step  at  EU  level  which  respects  the 
position  of  those  Member  States  who  had  difficulties  with  a  broader  instrument 
covering more rights. An additional advantage of tackling each right separately is 

EN 

29 

   EN 

 
89. 

90. 

91. 

92. 

that more through can be put into the discussions in Council with the very precise 
details of how each right would work being given attention. 

Positive  impacts:  a  measure  of  this  type  would  be  in  line  with  Tampere 
commitments.  It  would  result  in  an  improvement  in  the  quality  and  provision  of 
interpretation and translation in criminal proceedings. As stated above, the effect 
could be felt beyond the EU amongst those countries that seek to emulate the EU 
standard. The effects would be greater over time. Experience shows that Member 
States  can  be  slow  to  implement  third  pillar  legislation  as  can  be  seen  from  the 
Commission's  implementation  reports  on  Framework  Decisions  which  show  that 
Member States have not always fulfilled their obligations by the date agreed in the 
Framework  Decision  itself.  Usually,  if  the  Commission  waits  and  gives  Member 
States a year or two longer, more will have submitted their transposing legislation. 
(Examples:  FD  on  financial  penalties,  freezing  orders,  confiscation  orders.  Even 
with  the  European  Arrest  Warrant,  a  popular  measure,  only  8  out  of  the  then  15 
Member  States  had  completed  the  implementation  process  by  1  January  2004). 
This  staggered  implementation  means  the  effects  would  start  to  be  felt 
exponentially as more Member States transposed and implemented the instrument. 
This would be all the more so for those Member States that currently fall below the 
ECHR  and  other  international  standards  (identified  in  the  Status  Quaestionis 
study).  The  social  groups  most  affected  would  be  legal  professionals  (judges, 
prosecutors and lawyers), legal interpreters and translators and other auxiliary staff 
in these two professions and accused persons themselves.  

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  before  him.  The  procedure  would  be  explained  in  a  language 
that the accused understands, which is essential for a fair trial. It would ensure a 
more  level  playing  field  where  citizens  would  understand  the  nature  of  the 
criminal  proceedings  against  them  and  their  rights.  It  would  allow  for  greater 
access  to  justice  as  it  would  strengthen  the  accused's  ability  to  make  informed 
choices. 

Negative impacts: it would place a financial and administrative burden on Member 
States that currently do not offer training to legal interpreters and translators (see 
below  for  costs  considerations).  Evaluation/monitoring  of  compliance  would  be 
required  which  would  also  be  burdensome  whether  it  was  carried  out  by  the 
Commission,  by  academics  or  other  stakeholders  or  by  the  Member  States 
themselves. 

It is not possible to establish with precision the costs of option 5. There are several 
reasons for this: figures relating to costs of having quality legal interpretation and 
translation services are not available from Member States. Member States are all at 
very  different  stages  in  the  process  of  establishing  such  services  so  individual 
calculations  would  have  to  be  made  for  each  Member  State  and  the  necessary 
information is not available. Some Member States already use trained interpreters 
systematically,  some  do  not.  The  costs  would  vary  according  to  the  number  of 
proceedings involving interpretation and translation and the costs include not only 
the cost of providing interpretation and translation in criminal proceedings but also 
in many Member States the cost of training interpreters and translators since some 

EN 

30 

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Member  States  do  not  use  set  proficiency  tests  or  use  trained  professionals  but 
simply  people  who  profess  an  adequate  knowledge  of  the  relevant  foreign 
languages.  See  tables  5  and  6  in  annexe  4  for  estimates  of  the  number  of 
proceedings involving non-nationals in all Member States and costs of providing 
interpretation  and  translation  in  these  proceedings.  Most  Member  States  do  not 
collect and disseminate data about numbers of criminal proceedings per year. The 
Commission has made its "best guess" as to the number of criminal proceedings in 
each Member State (see table 5, annexe 4 and explanatory notes). From this figure, 
a  figure  for  number  of  proceedings  involving  non-nationals  was  estimated.  In 
some  cases,  we  have  the  exact  figure  and  where  this  is  so,  this  is  set  out  in  the 
explanatory  notes.  For  other  Member  States,  we  have  taken  the  population  as  a 
whole,  then  applied  an  EU  average  to  estimate  the  number  of  foreign  nationals 
living in that Member State, and from that figure, we have provided an assessment 
of  how  many  proceedings  will  involve  non-nationals.  Owing  to  their  speculative 
nature,  these  figures  are  for  rough  guidance  only  but  will  nonetheless  provide 
Member  States  with  some  assistance  in  working  out  the  likely  costs  of 
interpretation and translation per year (table 6, annexe 4). For those Member States 
that  already  provide  interpretation  and  translation  in  accordance  with  the  ECHR, 
the costs of implementing this proposal will not be much higher than current costs. 
For those that do not or those that will need to train interpreters and translators in 
order to fulfil their obligations, the costs will be higher. 

In  terms  of  paying  interpreters.  For  the  year  2007-8,  the  UK  provides  "rough" 
figures of £22 million for the costs of having interpretation in police stations and 
£15.4  million  for  the  costs  of  having  interpreters  in  courts.  The  UK's  budget  is 
dramatically higher than those of all other Member States. The UK is one of the 3 
Member States whose provision is said to be of above average quality and it could 
therefore be that this would be the standard to aim for other Member States, with 
attendant costs. SE also provided a figure of €3.15m for  costs of interpretation in 
(including  telephone  interception 
2008  and  NL  a  figure  of  €27m  in  2008 
interpretation and interpretation during police questioning). See Table 6, annexe 4 
for Commission estimates of the costs of interpretation per Member State with the 
envisaged provisions in force. 

No figures are available for translation costs. Translation costs are usually on the 
basis  of per word or per  page rates. They vary across the EU. Private translators 
specialising in legal translation can ask for rates of between 100 and 150 euro per 
1,000  words  but  the  Commission  does  not  have  any  figures  for  rates  paid  to 
translators employed by courts. Also, the size of documentation varies according 
to judicial tradition and the complexity of cases in question (see annex 3). Table 6 
in annexe 4 sets out Commission estimates of the cost of providing translation with 
the  envisaged  provisions  in  force.  For  each  Member  State  a  range  is  given.  The 
explanatory notes set out how this figure, and the range given, was reached. 

93. 

94. 

95. 

At the March 2009 experts' meeting, the suggestion of working on this right alone 
as  a  starting  point  was  greeted  with  enthusiasm  by  many  participants,  including 
delegates  from  Member  States.  Additionally,  the  Commission  has  considerable 
knowledge  in-house  about  this  right.  In  March  2009  a  Report  was  published  by 

EN 

31 

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DG  Interpretation:  the  Final  Report  of  the  Reflection  Forum  on  Multilingualism 
and Interpreter Training40. This Report was the fruit of meetings of the Reflection 
Forum during 2008 and 2009 to identify whether there is a need for action and if 
so, what action could be taken. The Forum concluded that there was a need and set 
out  Recommendations  as  to  how  to  improve  the  provision  of  competent  and 
qualified  interpreters  in  criminal  proceedings.  The  Recommendations  included 
having  a  Curriculum  in  Legal  Interpreting,  and  a  system  of  accreditation, 
certification  and  registration  for  legal  interpreters.  A  Commission  proposal 
providing for the right to interpretation and translation in cases where the accused 
does not have the nationality of the country holding the proceedings would cover 
almost  all  cases  where  the  accused  does  not  understand  the  language  of  the 
proceedings except proceedings held in bilingual countries. 

40 See paragraph 22 above and footnote 12. 

EN 

32 

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SECTION 8: COMPARING THE OPTIONS 

+++ 

Indicates high positive impact 

0 

Indicates zero impact 

---- 

Indicates high negative impact 

Option 

1. Status Quo 
–  no  further 
action  at  EU 
level 

Non-

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

Effectiveness  against 
coherence with other EU policies in place 

the  objectives  and 

minimum 
Provide 
standards 
for 
procedural  rights  in 
criminal proceedings 

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

Impact on society and 
fundamental rights 

Efficiency 

Political feasibility 

0 

0 

0 

None of the objectives would be met without any 
EU action  

No cost to MS  

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

+ 

++ 

+ 

- 

Dependent 
willingness 
Will 
standards. 

not 

to 

MS 
on 
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 

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

EP and most MS expect 
EU action.  

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

EN 

33 

EN 

 
  
 
 
Option 

3.  Reintroduce 
2004  instrument 
all 
covering 
rights 

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

Effectiveness  against 
coherence with other EU policies in place 

the  objectives  and 

Provide 
minimum 
for 
standards 
procedural  rights  in 
criminal proceedings 

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

Impact on society and 
fundamental rights 

Efficiency 

Political feasibility 

+++  

+ 

+++ 

Sets  down  comprehensive 
common standards.  

comprehensive 
A 
Instrument  in  itself  without 
flanking  measures  would 
not  raise  public  awareness, 
but 
the 
it  would  draw 
attention  of  national  media 
to  more 
controversial 
elements.  

All  accused  persons  would 
be  guaranteed  rights  under 
ECHR. Would provide basis 
for  mutual  trust  across  the 
EU.  Perception  of  standards 
help 
of 
encourage  more  citizens  to 
exercise  right  to  freedom  of 
movement.   

justice 

could 

envisaged.   

--- 

Costs  expected  to  be  very 
considerable,  especially  for 
legal aid in those MS which 
do not currently provide it. 

++ 

- 

- 

-- 

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 

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

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

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.  

EN 

34 

EN 

 
  
 
Option 

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

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

Effectiveness  against 
coherence with other EU policies in place 

the  objectives  and 

Provide 
minimum 
for 
standards 
procedural  rights  in 
criminal proceedings 

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

Impact on society and 
fundamental rights 

Efficiency 

Political feasibility 

+ 

- 

-  

-  

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 

As  above,  hostile  media 
interest could be misleading. 

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 
cases 
to 
discrimination  which  may 
outweigh benefits. 

leading 

– 

Costs  will  depend  on  the 
proportion  of  cases  which 
'cross-
will  be  deemed 
border' 
vary 
between  MS.  Statistics  are 
not  available  (but  see  Table 
6 at Annex 5). 

and  will 

test, 

meet 

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

++ 

0 

+ 

-- 

Most  MS  would  support 
action in this area.  

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 

EN 

35 

EN 

 
  
SECTION 9. THE STEP-BY STEP APPROACH IN MORE DETAIL: COMBINING 

OPTION 2 AND OPTION 5 

96. 

97. 

98. 

99. 

Combining options 2 and 5 would maximise the synergies between legislative and 
non-legislative action. A binding legislative instrument would lay down the basic 
minimum requirements that Member States should meet, while recommendations 
for  best  practice  could  go  into  greater  details  on  how  to  organise  training, 
accreditation  for  translators  and  interpreters,  a  registration  scheme,  possible 
guidance  on  rates  of  pay  and  more  detail  about  how  much  provision  would  be 
desirable.  Some  of  these  issues  relate  to  the  organisation  of  the  interpreters'  and 
translator's professions and as such are not third pillar issues, but rather regulation 
of  a  profession.  Consequently  these  recommendations  could  not  be  covered  by  a 
legislative  instrument  but  they  are  important  nonetheless  for  the  provision  of 
interpretation and translation in criminal proceedings.  

This option would be to enable a progressive, step-by-step, approach, which would 
satisfy both those Member States which are calling for legislation and those who 
want soft-law instruments. It could provide scope for a longer term action plan for 
the  progressive  approximation  of  laws  in  the  area  of  procedural  rights  taking 
account of practical aspects either.   This approach would not be as dependent on 
the  Lisbon  Treaty  as  option  3.    An  action  plan  could  be  agreed  at  political  level 
and  require  that  all  institutions,  including  the  Council,  continue  work  on 
procedural  rights  over  a  longer  period  of  time.  Further  specific  rights,  including 
the  rights  which  the  2004  proposal  had  suggested,  would  be  examined  again 
individually  and,  if  appropriate,  some  or  all  could  be  addressed  by  legislation 
and/or best practice guidance to Member States.  

This  option  would  result  in  an  improvement  in  the  quality  and  provision  of 
interpretation  and  translation  in  criminal  proceedings.  The  effect  could  be  felt 
beyond the EU amongst those countries that seek to emulate the EU standard. The 
effects would be greater over time. Experience shows that Member States can be 
slow  to  implement  third  pillar  legislation  so  the  effects  would  start  to  be  felt 
exponentially as more Member States transposed and implemented the instrument. 
This would be all the more so for those Member States that currently fall below the 
ECHR  and  other  international  standards  (identified  in  the  Status  Quaestionis 
study).  The  social  groups  most  affected  would  be  legal  professionals  (judges, 
prosecutors and lawyers), legal interpreters and translators and other auxiliary staff 
in these two professions and accused persons themselves.  

This  approach  would  contribute  to  building  mutual  trust  by  using  a  long-term 
commonly agreed working method and recognising that certain issues need to be 
addressed  at  EU  level,  either  through  legislation  or  soft-law,  or  both.  It  would 
ensure  a  fairer  trial  in  cases  where  the  suspect  does  not  understand  the  criminal 
proceedings,  his  rights  or  the  full  charges  before  him.  The  procedure  would  be 
explained in a language that the accused understands which is essential for a fair 
trial. It would ensure a more level playing field where citizens would understand 
the nature of the criminal proceedings against them and their rights. It would allow 
for  greater  access  to  justice  as  it  would  strengthen  the  accused's  ability  to  make 
informed choices. The addition of an instrument setting out best practice would be 

EN 

36 

   EN 

 
100. 

101. 

102. 

that Member States would have a clearer idea of how to achieve the standards set 
in  the  Framework  Decision  and  how  to  provide  the  training,  accreditation  and 
registration aspects  

The  option  would  place  an  additional  financial  and  administrative  burden  on 
Member  States  that  currently  do  not  offer  training  to  legal  interpreters  and 
translators.  Evaluation  and  monitoring  of  compliance  would  be  required  which 
would be an additional burden. 

Furthermore, this option is politically feasible and accepted as a legitimate area of 
interest for the EU since it will affect cross border cases only.  It is clear from the 
fate  of  the  Commission's  2004  proposal  that  an  instrument  covering  the  same 
rights will not meet with agreement in Council, but a proposal for action focused 
on  a  single  issue  such  as  this  could  be  received  much  more  favourably.  During 
discussions  on  the  2004  proposal,  the  right  to  interpretation  and  translation  were 
viewed as less controversial, in particular by those Member States that opposed the 
full proposal. There is therefore a greater chance that these two rights could form 
the  subject  of  agreement  in  Council  than  a  broader  instrument.  Having  both  a 
legislative proposal and a 'Best Practice' proposal on the table would enable greater 
flexibility to move provisions from one to the other according to Member States' 
wishes and existing systems, making adoption more feasible.  The preferred option 
goes beyond the 2004 proposal in that it sets out in detail these specific rights to be 
covered in a legislative instrument and with flanking best practice guidance. 

The Commission has experience of trying to put forward a broad scope instrument 
covering a number of rights. This was not achievable. It is now important to put 
forward  an  instrument  that  is  going  to  succeed  in  achieving  agreement.  The 
Commission must therefore be realistic and start with a small step such as the one 
described in the Impact Assessment. If this proposal was agreed without too many 
problems,  and  the  climate  suggested  that  other  proposals  covering  other  rights 
might also succeed, the plan would be to introduce all the rights that were set out 
in the Commission's 2004 proposal one at a time (1. the right to legal advice, both 
before the trial and at trial, 2. the right to interpretation and translation, 3. specific 
attention  for  persons  who  cannot  understand  or  follow  the  proceedings  and 
protection  for  minors,  4.  communication  with  family  and  consular  authorities 
while in detention   and 5. Letter of Rights).  

103. 

The step-by-step approach would address these issues separately, in the following 
order: 

•  Right  to  Translation  and  Interpretation  :  a  measure  on  the  right  to  translation 
and  interpretation  as  well  as  a  document  on  best  practice  on  the  right  to 
translation and interpretation 

•  Right to Information on Rights : a measure on the right to information on rights 
and  to  information  about  the  charges  as  well  as  a  document  on  best  practice 
regarding  the  right  to  information  on  rights  and  to  information  about  the 
charges 

EN 

37 

   EN 

 
•  Right to Legal Aid and Legal Advice: a measure on the right to legal aid and 
legal advice as well as document on best practice regarding the right to legal aid 
and legal advice 

•  Right  to  Communication  with  Relatives:  a  measure  on  the  right  for  a  person 
deprived of his/her liberty to communicate with relatives, employers and with 
consular authorities 

•  Special Safeguards for Vulnerable Persons: a measure on special safeguards for 

vulnerable persons 

•  Length of Detention: a Green Paper on length of detention. 

How  the  obligation  to  provide  interpretation  and  translation  would  enhance  mutual 
trust 

104. 

105. 

Respect for the right to translation and interpretation is essential, but not sufficient, 
for mutual trust. The obligation to provide interpretation and translation is only a 
first step towards enhancing the position of the suspect/accused. 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.  As 
such,  this right will contribute to ensuring that the suspect/accused is in a position 
to communicate with the authorities, in particular to ask and answer questions or to 
exercise the right to keep silent.  

Once  the  defendant  is  in  a  position  to  communicate  with  the  authorities  and 
understand why proceedings are brought against him, he will be able to clarify his 
other  rights  and  ask  whether  he  is  entitled  to  have  a  lawyer.  The  authorities  will 
have to provide this information in accordance with Article 6 ECHR and national 
law. While having access to an interpreter/lawyer will not per se achieve a better 
protection  of  other 
lawyer,  without 
interpretation/translation  the  suspect/accused  would  possibly  not  even  know  that 
he  has  other  rights.  Thus,  the  right  to  interpretation  and  translation  is  a  first  but 
essential  guarantee  for  the  suspect/accused  to  obtain  a  fair  trial  and  may  in  a 
number of cases prevent a further miscarriage of justice.  

to  have  a 

rights,  e.g. 

right 

the 

106. 

The step-by-step approach, once approved by the JHA Council, will be based on 
the political undertaking of the Member States to work with the Commission - and 
possibly  with  the  European  Parliament  soon  –  to  complete  the  catalogue  of  fair 
trial rights over the next 5 years.  

Summary of the step-by-step option 

Relevance 
objectives 

to 

Impact  on  society 
and 
fundamental 
rights 

Costs 

Political  feasibility 
and 
stakeholder 
views  

Fully 
objectives 

meets 
if  MS 

common 
Limited 
standards  in  the  area 
where  considered  to 

Costs will depend on 
the  proportion  of 
cases  which  will  be 

As above – most MS 
expect 
legislative 
action  with  flanking 

EN 

38 

   EN 

 
implement guidance 

urgent. 
be  most 
Would  demonstrate 
progress 
and 
incremental 
approach.  

measures.  

'cross-
deemed 
border' and will vary 
between MS.  

to 

Cost  of  access 
adequate 
interpretation 
for 
large  MS  (UK)  is 
about €40m per year. 
Cost  of 
translation 
varies  according  to 
scheme 
the  price 
prevalent 
in 
individual  member 
states. 

on 

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

could 

SECTION 10: MONITORING AND EVALUATION  

107. 

108. 

Any  Commission  proposal  would  lay  down  an  obligation  for  Member  States  to 
communicate implementing legislation and a correlation table to the Commission 
within a specified time (2-3 years is usual). The Commission would then prepare 
an implementation report recording which Member States had complied with their 
obligations to transpose the Framework Decision. Indicators which can be used to 
assess  compliance  would  be  whether  training  courses  were  on  offer  for  potential 
legal  interpreters  and  translators,  whether  a  register  was  in  place  and  whether 
numbers of certified interpreters and translators could be provided.  

At  the  26  and  27  March  experts'  meeting,  the  Committee  for  the  Prevention  of 
Torture  (CPT,  a  Council  of  Europe  body)  offered  spontaneously  to  assist  in 
monitoring  and  evaluation  in  the  context  of  CPT  visits  to  Council  of  Europe 
Member  States.    Other  possible  sources  of  information  on  compliance  would  be 
the  Justice  Forum,  national  and  European  Bar  Associations  and  academic 
institutions (such as ECLAN at ULB). 

109. 

On  a  practical  level,  in  November  2009,  the  European  Legal  Interpreters  and 
Translators'  Association  (EULITA)  will  be  launched.  The  establishment  of  this 
association  has  been  possible  owing  to  a  Criminal  Justice  Programme  grant 

EN 

39 

   EN 

 
this  association  will  assist 

the 
(JLS/2007/JPEN/249).  The  existence  of 
Commission  which  has  hitherto  not  had  an  official  interlocutor  within  the 
professions  of  legal  interpreter  and  translator  (although  there  have  been  long-
standing links with Professor Erik Hertog of Lessius Hoogeschool in Antwerp, the 
author  of  ,  inter  alia,  the  'Status  Quaestionis'  study).  This  will  make  it  easier  to 
receive input and feedback from, and to communicate with, the profession, and to 
monitor implementation of any EU measures (be they legislation or best practice 
recommendations).  

110. 

A  Eurobarometer  survey  could  be  used  to  monitor  improvement  in  public 
opinion's assessment of the fairness of justice in the EU. 

EN 

40 

   EN 

 
ANNEX 1 

COUNCIL OF 

Brussels, 30 September 2004 (06.10) 

THE EUROPEAN UNION 

(OR. fr) 

12902/04 

LIMITE 

JUR 399 

COPEN 117 

OPINION OF THE LEGAL SERVICE 

Subject : 

Proposal  for  a  Council  Framework  Decision  on  certain  procedural  rights  in
criminal proceedings throughout the European Union 

I. 

1. 

2. 

9318/04 COPEN 61 COM(2004) 328 final 

INTRODUCTION 

The Commission has submitted to the Council the above proposal, which is based 
on  Article 31(1)(c)  of  the  Treaty  on  European  Union  (hereinafter  TEU).  The 
question  is  whether  that  Article  is  the  correct  basis  for  the  competence  of  the 
European  Union  to  adopt  a  framework  decision  in  this  area.    This  note  seeks  to 
answer that question. 

According  to  settled  case-law  the  choice  of  the  legal  basis  for  a  Community  act 
must rest on objective factors which are amenable to judicial review, including, in 
particular, the aim and content of the act 41. 

In  substance,  this  case-law  applies  likewise  to  acts  based  on  the  TEU.  It  is  therefore 
necessary to analyse the aim and content of the above proposal. 

II. 

3. 

41  

AIM AND CONTENT OF THE PROPOSAL 

This  proposal  seeks  to  define  minimum  common  standards  regarding  certain 
procedural  rights  in  criminal  proceedings  in  the  European  Union,  in  order  to 
enhance  the  protection  of  the  rights  of  the  individual.  The  granting  of  an 

See in particular Judgment of 4 April 2000, Commission v. Council, C-269/97, ECR I-2257, of 29 
April 2004, Commission v. Council, C-338/01, not yet published in the ECR. 

EN 

41 

   EN 

 
 
 
 
 
 
 
 
 
                                                 
equivalent level of protection to suspects and defendants  throughout the European 
Union  should  facilitate  the  application  of  the  principle  of  mutual  recognition  of 
decisions in criminal matters in the framework of judicial cooperation between the 
Member States. 

The preamble to the proposal states that the implementation of the latter principle 
presupposes that Member States have trust in each other's criminal justice systems. 
This  spirit  of  confidence  can  only  be  established  if  the  judicial  authorities  see 
decisions of the judicial authorities of other Member States as equivalent to their 
own  and  do  not  call  into  question  their  professional  competence  and  respect  for 
fair trial rights. 

In the preamble it is noted that there is not always sufficient trust in the criminal 
justice systems of the other Member States and this notwithstanding the fact that 
they are all parties to the European Convention for the Protection of Human Rights 
and  Fundamental  Freedoms  (hereinafter  ECHR).  In  order  to  enhance  this 
confidence,  the  proposal  provides  for  certain  minimum  safeguards  to  protect 
fundamental rights that are to be observed in all criminal proceedings, whether or 
not the case in question has trans-border implications, depending on whether or not 
the  cooperation  of  the  judicial  authorities  of  another  Member  States  is  sought 
during the proceedings. 

Five areas have been identified by the Commission as appropriate ones in which 
common  standards  may  be  applied.  These  are:  access  to  legal  representation, 
access  to  interpretation  and  translation,  ensuring  that  persons  in  need  of  specific 
attention  because  they  are  unable  to  follow  the  proceedings  receive  it,  consular 
assistance to foreign detainees and notifying suspects and defendants of their rights 
in writing. 

The  right  to  legal  assistance  and  the  right  to  linguistic  assistance  for  foreigners 
and, where necessary, for those suffering from hearing or speech impairments, are 
enshrined  in  Article  6  of  the  ECHR.  The  provisions  of  the  proposal  impose  on 
Member  States  obligations  identical  to  those  imposed  by  the  ECHR  and  set  out 
common ways of complying with that Article. 

The right to consular assistance exists by virtue of Article 36 of the 1963 Vienna 
Convention on Consular Relations where it is a right conferred on States to have 
access  to  their  nationals  detained  abroad  if  they  so  wish.  The  provisions  of  the 
proposal confer this right with regard to European citizens detained in a Member 
State other than their State of origin. 

The  other  provisions  of  the  proposal  constitute  ways  of  improving  fairness  in 
proceedings and ensuring that those concerned are aware of their rights. 

Finally, the proposal establishes a mechanism to assess its implementation. To that 
end, Member States will have to gather and record information for the purpose of 
evaluation and monitoring.  This information will be used by the Commission to 
produce reports that will be made publicly available. 

4. 

5. 

6. 

7. 

8. 

9. 

10. 

III. 

BACKGROUND 

EN 

42 

   EN 

 
11. 

In  its  opinion  of  14  July  2000  (10341/00  JUR  241  COPEN  52)  on  the  draft 
Framework  Decision  on  the  standing  of  victims  in  criminal  procedure,  the  Legal 
Service  examined  the  scope  of  Article  31  of  the  TEU.  It  considered  whether  it 
belonged  to  the  objectives  of  the  Union  to  harmonise  the  penal  proceedings  and 
practices  of  the  Member  States.  While  expressing  doubts  that  this  was  what  the 
authors of the Treaty of Amsterdam had in mind, given that those proceedings and 
practices applied to entirely internal cases, it nevertheless noted that the wording 
of  the  provisions  of  Title  VI  of  the  TEU  offered  a  rather  wide  margin  of 
interpretation.  In the words of the opinion ''if the Council felt a need to deal with 
aspects  of  the  functioning  of  the  criminal  justice  systems  of  the  Member  States 
which  are  not  expressly  mentioned  in  Articles 30-32  of  the  TEU,  in  order  to 
further the more general objective of the Union of providing citizens with a high 
level of safety, it would have the power to do so'', adding that ''The improvement 
of  such  support  for  victims  may  also  enhance  the  credibility  of,  and  trust  in,  the 
functioning  of  the  criminal  justice  system  as  a  whole,  which  can  also  be 
considered a contribution to the creation of an area of security and justice.''.  In the 
Legal Service's view the proposal now under consideration follows the same logic. 

12. 

The Legal Service notes that, in the words of Article 29 of the TEU ''the Union's 
objective shall be to provide citizens with a high level of safety within an area of 
freedom,  security  and  justice''.  The  means  of  achieving  that  objective  are  laid 
down in Articles 29, 30, 31 and 32. 

Among  those  means  are  those  mentioned  in  Article  31(1)(c),  on  which  the 
Commission  based  its  proposal.  According  to  that  provision,  common  action  on 
judicial cooperation in criminal matters ''shall include'' ''ensuring compatibility in 
rules  applicable  in  the  Member  State,  as  may  be  necessary  to  improve  such 
cooperation''. The application of this provision depends in principle on two factors: 
(a) the action must aim at ensuring compatibility in Member States' rules and (b) 
the action must not exceed what may be necessary to improve judicial cooperation. 

Provided  we  remain  in  the  area  of  ''judicial  cooperation  in  criminal  matters'', 
Article 31 should be interpreted broadly, in view of the expression ''shall include'' 
which  appears  in  the  introductory  sentence  of  Article 31(1).  We  should  examine 
whether the competences assigned to the Union by this provision may be the basis 
for  common  action  which  aims  to  establish  a  pedestal  of  standards  to  ensure  a 
minimum  of  compatibility  between  the  rules  applicable  in  the  Member  States  to 
the  extent  necessary  to  improve  judicial  cooperation  between  the  Member  States 
with a view to creating an area of freedom, security and justice. 

The  adoption  of  Framework  Decisions  42  by  the  Council  implementing  the 
principle of mutual recognition was not accompanied by the adoption of minimum 
standards  for  the  protection  of  individual rights.  Such  standards  are  provided  for 
by existing international human rights treaties.  While it may be true that currently, 
in  the  words  of  Opinion 2/94  of  the  Court,  ''No  Treaty  provision  confers  on  the 

Council  Framework  Decision  of  13  June  2002  on  the  European  arrest  warrant  and  the  surrender 
procedures between Member States, OJ L 190, 18.7.2002, p. 2; Council Framework Decision of 22 
July 2003 on the execution in the European Union of orders freezing property or evidence, OJ L 196, 
2.8.2003, p. 45. 

13. 

42  

EN 

43 

   EN 

 
                                                 
14. 

15. 

Community  institutions  any  general  power  to  enact  rules  on  human  rights''  43,  it 
must be said that there is nothing to prevent the Union, under the TEC, from laying 
down its own standards in order to create a high level of protection in a specific 
legal  environment  –  in  this  case  an  area  in  which  legal  decisions  must  be 
recognised  and  executed  on  the  basis  of  the  principle  of  mutual  recognition  and 
hence of mutual trust – insofar as the essential aim of such measures is to facilitate 
the mutual recognition of decisions by Member States, rather than the protection of 
human rights. 

Common action based on Article 31(1)(c) must to a certain degree seek to ensure 
compatibility between Member States' rules. It is true that the Commission has not 
specified whether there is currently any incompatibility between these rules, in the 
sense that there may be contradictions, opposition or conflict between them, either 
as regards basic commitments or rules governing procedure or competence, which 
would  prevent  their  simultaneous  application  in  specific  cases.  However,  the 
Treaty does not stipulate that common action should consist in eliminating existing 
incompatibilities. The evidence of greater compatibility between the rules applying 
to procedural rights in criminal proceedings would increase trust between the legal 
systems of the various Member States. 

Common action based on Article 31(1)(c) must not – as was stated in point 12 of 
this  opinion –  go  beyond  what  is  necessary  to  improve  judicial  cooperation.    In 
fact,  this  is  more  generally  about  the  obligation  on  the  Union  to  respect  the 
principle  of  subsidiarity  (see  second  paragraph  of  Article  5  of  the  TEC,  made 
applicable to the Union by Article 2 of the TEU).  Given that most cases affected 
by the procedural guarantees in question are purely internal to each Member State, 
it  may  be  asked  whether  the  proposal  is  compatible  with  the  principle  of 
subsidiarity  laid  down  in  Article  5  of  the  TEC  and  further  developed  in  the 
Protocol on the application of the principles of subsidiarity and proportionality. 

Taking  account  of  the  guidelines  in  that  Protocol,  it  may  be  said  that,  in  strictly 
internal cases, action at national level alone or lack of action by the Union would 
not  be  contrary  to  the  requirements  of  the  Treaty  and  would  not  damage  the 
interests  of  the  Member  States.    In  practice,  however,  it  will  not  be  possible  to 
foresee in which cases the judicial cooperation of another Member State should or 
could be requested at successive stages of the proceedings. For this reason it is not 
possible  to  draw  a  distinction,  for  the  purposes  of  determining  the  scope  of  the 
Framework Decision, between internal cases and others. The result is that it cannot 
be said that the measures laid down (which in fact are minimal) go beyond what is 
necessary to encourage judicial cooperation in criminal matters 44. 

Therefore,  if  the  Council  is  of  the  opinion  that  the  guarantees  laid  down  in  the 
proposal at Union level offer advantages because of the positive effect on mutual 
trust  between  Member  States  and  between  courts  and  on  the  functioning  of 
criminal  justice  systems,  and  that  these  measures  do  not  go  beyond  what  is 

43  
44  

Opinion of the Court of 28 March 1996, ECR I-1759. 
Note the difference on this point between Article 31 of the TEU and Article 65 of the TEC, which 
refers to ''civil matters having cross-border implications''. 

EN 

44 

   EN 

 
                                                 
necessary  to  improve  judicial  cooperation,  the  Union  may  adopt  the  proposed 
measures and Article 31(1)(c) of the TEU is the correct legal basis for that 45. 

CONCLUSION 

16. 

The  Legal  Service  considers  that  the  Commission  proposal  is  correctly  based  on 
Article 31(1)(c) of the TEU and that the Council can adopt the proposed measures 
if, in compliance with the principle of subsidiarity, it considers that they do not go 
beyond what is necessary to improve judicial cooperation in criminal matters. 

45  

It should be noted that, under Article III 270 of the Treaty establishing a Constitution 
for Europe, ''Judicial cooperation in criminal matters in the Union shall be based on 
the  principle  of  mutual  recognition  of  judgments  and  judicial  decisions  and  shall 
include  the  approximation  of  the  laws  and  regulations  of  the  Member States''.  
According  to  Article  III-270(2),  ''To  the  extent  necessary  to  facilitate  mutual 
recognition of judgments and judicial decisions and police and judicial cooperation in 
criminal  matters  having  a  cross-border  dimension,  European  framework  laws  may 
establish minimum rules.  Such rules shall take into account the differences between 
the legal traditions and systems of the Member States.  

They shall concern: 

(a)  mutual admissibility of evidence between Member States; 

(b) 

the rights of individuals in criminal procedure; 

(c) 

(d) 

the rights of victims of crime; 

any other specific aspects of criminal procedure which the Council has 
identified in advance by a European decision; for the adoption of such a 
decision, the Council shall act unanimously after obtaining the consent of the 
European Parliament. 

Adoption  of  the  minimum  rules  referred  to  in  this  paragraph  shall  not  prevent  Member States  from 

maintaining or introducing a higher level of protection for individuals.''. 

EN 

45 

   EN 

 
                                                 
ANNEX 2 – Meeting Report 

Experts’ meeting on procedural rights 

26-27 March 2009 

Brussels 

Peter  Csonka,  Head  of  the  Criminal  Justice  for  the  European  Commission’s  DG  Justice, 
Freedom  and  Security  (DG  JLS),  chaired  the  expert  meeting  on  procedural  rights.  The 
European  Commission  plans  to  submit  a  proposal  on  procedural  rights  to  the  Council  by 
early July so that the upcoming Swedish presidency of the European Union (EU) can tackle 
it right from the start of its presidency. 

The  background  is  that,  following  a  Green  Paper  in  2003,  the  Commission  tabled  a 
proposal  in  2004  for  the  minimum  approximation  of  procedural  rights  in  five  areas 
(hereafter known as ‘the five procedural rights’): 

•  Access to legal advice, both before and during trial (and legal aid for those who cannot 

afford to pay for a lawyer) 

•  Access to interpretation and translation for non-native defendants 

•  Protection of vulnerable persons who cannot understand or follow the proceedings 

•  Communication and consular assistance to foreign detainees 

•  Information about rights by way of a Letter of Rights 

Following Member State (MS) objections, the text was diluted and a compromise proposal 
was tabled by the Austrian presidency of the EU in 2006, listing general rights such as the 
right  to  information,  the  right  to  legal  assistance  and  the  right  to  interpretation.  No 
agreement was reached on the proposal after discussions in 2007. 

It  is  important  that  any  EU  text  should  be  fully  compatible  with  the  provisions  of  the 
European Convention on Human Rights (ECHR), i.e. be “Strasbourg proof”. The European 
Court  of  Human  Rights  (ECtHR)  is  overburdened.  Six  MS  opposing  the  original  EU 
proposal  suggested  a  non-binding  resolution  with  best  practice  guidance  rather  than  a 
legislative proposal as they believed that the legal basis for legislation was shaky. There is 
still  controversy  as  to  whether  there  was  a  legal  basis  for  the  EU  to  legislate  despite  the 
Council Legal Service saying that there is a legal basis in its September 2004 Opinion. A 
non-binding report of the High-Level Advisory Group on the Future EU Justice Programme 
recommends  that  all  citizens  of  the  EU  should  be  provided  with  a  basic  set  of  rights  as 
minimum guarantees if they are subject to a criminal investigation. 

Preliminary findings of the ‘Procedural Rights in the European Union’ study 

Taru Spronken (Maastricht University) and Gert Vermeulen (Ghent University) gave 
a presentation on the update of a 2005 study on the five procedural rights. A questionnaire 
(with 122 questions) is being developed to be sent out to all MS by email on the right to 
information,  the  right  to  legal  advice,  the  right  to  legal  assistance  free  of  charge  and  the 

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right to interpretation and translation. The aim is to find out how the rights are regulated in 
detail. 

A preliminary comparison was given of some aspects of the Dutch and Belgian systems.  

In the Netherlands, there is no Letter of Rights. On arrest, suspects are cautioned about the 
right to silence and given some information on the charge. Access to the file can be limited 
during the pre-trial investigation.  

In  Belgium,  there  is  no  Letter  of  Rights.  There  is  no  obligation  to  inform  people  being 
interrogated  of  the  nature  of  and  reason  for  the  accusation.  There  are  some  exceptions  to 
this in that a person formally accused by an investigating judge is only then informed at the 
discretion  of  the  judge.  The  judge  is  not  obliged  to  inform  people  targeted  in  a  judicial 
investigation (but not officially accused) of their rights. Arrested suspects are not given any 
explicit information about their procedural rights (e.g. the right to remain silent). They are 
given access to the file one or two days ahead of their court appearance and can photocopy 
it at the end of the preliminary phase. 

In  the  Netherlands,  suspects  have  the  right  to  choose  a  lawyer  at  any  time  but  have  no 
access to one before the first police interrogation and no assistance during the interrogation. 
In  a  judgment  in  the  Salduz  case,  the  ECtHR  has  ruled  that access  to  a  lawyer  should  be 
granted  from  the  first  interrogation  by  the  police.  In  the  Panovits  case,  the  ECtHR  ruled 
that  lack  of  legal  assistance  during  interrogation  could  constitute  a  breach  of  the  ECHR. 
There is a big debate in the Netherlands as to what that means for the Dutch situation. A 
confession obtained without a lawyer present may be excluded from evidence. 

In Belgium, there is a right to legal advice, a suspect can choose a lawyer at any time but 
there  is  no  access  before  the  first  police  interrogation  or  assistance  during  the  first 
interrogation. There is a maximum of 24 hours deprivation of liberty before a suspect must 
appear before a judge. Lawyers and magistrates called for an extension from 24 to 48 hours 
as  currently  there  are  more  arrests  than  necessary  but  lawyers  did  not  ask  for  this  to  be 
backed up by the presence of a lawyer. 

Presentation  of  ‘Effective  Criminal  Defence  Rights  in  Europe’  (University  of  West  of 
England) 

Professor Ed Cape gave this presentation. There is a lack of rigorous scientific evidence 
on how the investigative stage works in practice. The approach is to look at issues such as 
equality  of  arms,  effective  representation  and  effective  participation  as  experienced  by 
those caught up in the criminal justice process. Reports have been completed for England & 
Wales,  Belgium  and  Hungary  while  research  is  ongoing  for  Finland,  Germany,  Poland, 
Turkey, France and Italy. A conference will be held in Brussels in June 2010 to disseminate 
the findings and a book is to be published. 

Among the preliminary findings:  

Hungary 

–  No obligation to provide a Letter of Rights 

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–  Ploys are used by the police to avoid legal advice being granted to interviewees before 
their  interview  with  the  police  (e.g.  questioning  a  person  informally  or  questioning  a 
suspect as if they were a witness) 

–  Lack of defence counsel access to information at the investigative stage 

–  Appointment  of  substitute  lawyers  at  short  notice  in  cases  of  mandatory  defence 

(sometimes a trainee without supervision) 

–  No mandatory translation of key documents and poor quality of translation 

Belgium 

–  No obligation to provide a Letter of Rights 

–  No right to presence of lawyer during interrogation 

–  No right to access the file at the investigative stage 

–  Poor level of quality of interpreters and no quality assurance 

–  Inadequate pay for defence lawyers 

England & Wales 

–  Letter of Rights required at the investigative stage but not thereafter 

–  No statutory right to interpretation and translation 

–  Emerging themes 

The  ECHR  does  not  cover  all  aspects  of  an  effective  criminal  defence.  The  ECtHR 
intervenes  when  the  failure  of  legal  representation  is  extreme,  i.e.  not  when  there  is  a 
question mark over the defence’s competence. Compliance with the ECHR’s provisions on 
the  right  to  a  fair  trial  is  variable.  There  are  major  deficiencies  in  terms  of  access  to  a 
defence  lawyer,  especially  for  poor(er)  people.  Legal  regulation  is  necessary  to  ensure 
access to effective criminal defence but it is not sufficient as, if judges allow breaches then 
any legislation will be pretty meaningless. There is a lack of systematic collection of data 
and research on how far there is an effective defence. 

Letter of Rights project 

The German Ministry of Justice has drawn up a document which can provided information 
on procedural rights to the accused immediately after their arrest. The idea is that it will be 
available  in  all  police  stations  in  electronic  form  and  can  be  accessed  on  the  internet  and 
then  printed  out.  The  next  step  is  for  it  to  be  translated  into  other  languages.  The  Law 
Society in England & Wales has a similar project. It may be possible to use it as a basis for 
a European-wide Letter of Rights. 

Austrian project – ‘Assessing pre-trial access to defence rights’ 

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This is a project involving Austria, Croatia, Germany and Slovenia covering topics such as 
access  to  legal  assistance,  access  to  legal  aid,  the  enforcement  of  defence  rights,  the 
participative  rights  of  defence  lawyers  during  interrogation  and  the  recording  of 
interrogations. It covers country reports on the legal situation, a quantitative analysis via a 
questionnaire  and  a  qualitative  analysis  via  follow-up  interviews.  Results  are  due  by 
October 2010. 

In Austria, there is a new pre-trial law in which suspects can talk to a lawyer before their 
first  interrogation  and  the  lawyer  can  be  an  observer  at  the  interrogation.  There  is  also  a 
new Austrian legal aid emergency service which aims to make access to a lawyer possible 
immediately  after  an  arrest  or  during  a  first  interrogation  usually  by  police.  The  pilot 
project began in July 2008 and was tested until October 2008 before being extended. There 
is a telephone hotline available to all detainees regardless of their financial means. It is a 24 
hour  per  day,  seven  day  per  week  service  paid  for  by  the  detainee  if  he/she  has  enough 
money but by the Ministry of Justice if he/she does not. The defendant can waive their right 
to this. 

After 48 hours, the case must go to court and then the general legal aid lawyer system kicks 
in.  In  connection  with  the  emergency  service,  there  has  been  little  contact  between 
defendants and lawyers. In each of July, August and September 2008, there were 39 cases 
of lawyers being used out of around 1,200 arrests per month. This is possibly because the 
police have not informed defendants of this right or because there is not a tradition of active 
defence at the pre-trial stage.  

Peter  Csonka  (DG  JLS)  called  for  coordination  between  the  different  projects  to  avoid 
people being asked the same questions in different questionnaires. 

The meeting then moved onto debate about three themes. 

Theme 1 – Is there a need for EU action in this area? 

Eberhard  Siegismund  (German  Ministry  of  Justice):  Binding  EU-wide  regulations  are 
urgently needed because  60%  of  cases at the ECtHR are repeated cases where a decision 
has already been taken in a previous case with similar facts. This shows that the ECtHR has 
a  low  level  of  acceptance  and  dissemination.  The  provisions  of  the  ECHR  are  taken  too 
little account of in practice and so an additional instrument is needed. Cases are admissible 
at the ECtHR only if national legal proceedings are exhausted, which can take a long time. 
The ECtHR looks at an overall approach, which is of no benefit to the citizen, who wants to 
know if it is illegal if they do not have a legal defence at a certain stage [of their case]. We 
need a body that can swiftly say if measures were legal or not. 

Lorenzo  Salazar  (Italian  Ministry  of  Justice):  Yes.  Back  in  2003,  Italy  asked  the 
Commission to put together a proposal on minimum guaranteed rights and Italy has been in 
favour  of  adopting  an  instrument  ever  since.  A  citizen  could  be  arrested  anywhere  in 
Europe but rights vary in different countries as does treatment and the material conditions 
of detention. We need to take action. We must ensure that it is not only legislation but also 
practical  things  and  material  conditions  need  to  be  aligned  in  Europe.  Complete 
convergence is very difficult in the short term. Beyond the rights of those who have been 
arrested, we need to look at the rights of witnesses and all parties in criminal proceedings 
(and especially the most vulnerable). 

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Serge de Biolley (Belgium’s Permanent Representation to the EU): Belgium’s position 
has  not  changed.  It  is  necessary  to  align  positions  in  this  area  because  EU  law  has 
continued  to  develop  and  there  is  a  bigger  gap  between  the  right  to  cooperation  and 
progress  not  being  made  in  implementing  our  common  values.  Belgium  is  not  one  of  the 
best in class in all sectors. We’ll be forced to make developments. Yes to the question but 
there are issues such as where we need to start. 

Jessica Auken (Denmark): It would be useful to know about the practical implementation 
of rules by MS. We don’t have an overview of what is happening and we need to evaluate 
this  and  ensure  that  the  introduction  of  minimum  rules  in  Europe  will  help  protect  the 
rights. There is a lot of work to be done. We are a long way from a decision to introduce 
minimum  rights  everywhere.  Some  MS  are  more  committed  than  others  but  often  those 
most committed often find it most difficult to implement things. That’s a pity. Denmark is 
sceptical  about  the  introduction  of  this  system  for  that  reason.  Would  introducing  an 
instrument  mean  the  elimination  of  existing  human  rights?  We  need  to  ensure  that  it  is 
legally  watertight  and  that  we  do  not  undermine  work  done  by  others.  It  would  be 
interesting to hear the Council of Europe’s views on this. First we need to study this before 
implementing rules. 

Peter Csonka (DG JLS): Is Denmark in favour of an instrument with limited scope? 

Jessica  Auken  (Denmark):  Denmark’s  position  has  not  changed.  It  is  in  favour  of  a 
restricted  instrument.  The  discussion  today  is  about  a  broader  catalogue  of  rights  and  my 
comments come in that context. 

Dimitrios Zimianitis (Greek Ministry of Justice): Entirely supported what Italy said. In 
favour of an instrument. Greece’s position has not changed since 2004. Greece believes the 
EU must act as the existing framework in the Council of Europe is not sufficient. We need 
a uniform mechanism to ensure that people’s rights are uniformly applied across the EU. If 
the Lisbon Treaty is adopted, there would be the right to take a case to the European Court 
of Justice. The ECtHR is too slow and it is not possible to use it in practice. 

Geraldine  Moore  (Irish  Ministry  of  Justice):  Ireland  had  difficulties  with  the  previous 
proposal but sees the importance of procedural safeguards. There are minimum standards in 
the ECHR so Ireland wonders if a new initiative is necessary and has added value. Ireland 
is  more  in  favour  of  best  practice  and  peer  evaluation.  It  would  like  to  see  practical 
evidence  to  show  that  an  instrument  is  needed.  The  studies  presented  this  morning  were 
interesting and it is a pity that they will not be finished before 2010. 

Adrienne  Boerwinkel  (Dutch  Ministry  of  Justice):  The  presentations  show  that 
legislation is one thing but practical implementation is something else. Although some MS 
have  proper  legislation,  the  practice  may  not  be  in  line  with  proper  procedural  standards. 
The  opposite  may  also  exist,  with  some  MS  having  proper  practical  standards  in  practice 
but  little  in  the  way  of  legislation.  For  example,  in  The  Netherlands,  there  is  no  legal 
obligation  to  have  a  Letter  of  Rights  but  extensive  brochures  in  different  languages  are 
given  to  people  when  they  are  arrested.  The  Netherlands  sees  the  need  for  EU  action  to 
improve  the  procedural  rights  of  suspects  in  the  EU  but  this  should  not  focus  only  on 
legislation. It is important to accompany legislative proposals with practical measures and 
that  we  can  monitor  the  establishment  of  procedural  standards.  Legislation,  practical 

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measures  and  monitoring  implementation  are  three  elements  of  importance  to  focus  on 
together. 

(Luxembourg’s  Permanent  Representation 

Raoul  Ueberecken 
the  EU): 
Luxembourg’s position has not changed since 2004 and has in fact strengthened. Perhaps it 
is time to look at rediscovering the balance between facilitating cross border prosecutions 
and protecting the rights of the accused. This question is closely linked to the next question 
to be discussed, i.e. mutual recognition and mutual trust. Luxembourg hopes the proposals 
will be revived soon. 

to 

Rosalind Campion (UK’s Office for Criminal Justice Reform): The UK can agree with 
what the Netherlands said in particular. The UK does not think that legislation is the only 
solution and that action has a broader meaning than legislation. The UK does not want to 
replace the ECHR’s rights but look at areas where we can add value. 

Lord  Justice  Thomas  (European  Network  of  Councils  for  the  Judiciary):  Broadly  in 
favour of a cautious approach to further legislation. Strong support for getting going in this 
area  but  we  must  recognise  the  deep  historical  differences  [in  systems]  between  MS.  We 
need  to  take  into  account  the  rights  of  victims  and  witnesses  and  to  work  with 
representatives of these groups or else we will get nowhere. 

Zuzana Cernecka (Czech Ministry of Justice): Yes to this question. The Czech Republic 
has  supported  procedural  rights  from  the  beginning  but  not  by  way  of  a  Framework 
Decision.  Studies  today  show  the  need  for  work  in  this  area.  It  would  facilitate  mutual 
recognition  and  enhance  mutual  trust  between  MS  and  citizens’  trust  in  the  judicial 
authorities  of  other  MS.  The  Czech  Republic  would  welcome  practical  measures  in  this 
area. 

Matevz Pezdirc (Slovenian Ministry of Justice): Slovenia has the same position as before 
and supports EU action. We should have legislative action in procedural rights. There is a 
gap  between  legislation  and  reality.  Slovenia  can  support  the  idea  of  practical  measures 
accompanying  legislation  plus  some  evaluation.  With  lots  of  mutual  recognition 
instruments, we need action in the area of procedural rights and protection of citizens in this 
respect. 

Eszter Viczko (Hungarian Ministry of Justice): Hungary supports legislative measures. 

Anna  Ondrejova  (Slovakia’s  General  Prosecutor’s  Office):  Slovakia’s  position  is  the 
same as in 2007. Although aware of the information and results of research here, it still has 
misgivings about overlap between the jurisdiction of the ECtHR and the European Court of 
Justice (ECJ). Slovakia sees a place for measures other than legislative ones. 

Marina  Gusauskiene  (Lithuania’s  Ministry  of  Justice):  Yes  to  the  question.  Lithuania 
agrees  with  The  Netherlands  that  it  not  only  legislation  but  practical  implementation  that 
matters. There is a fresh code in Lithuania and the country is not afraid of EU intervention 
as  it  has  good  standards  on  paper  but  is  not  so  good  in  practice.  Some  of  the  rights  are 
cheap whereas others are expensive (e.g. legal advice and interpreting services). The right 
needs to be followed up with good finance and good organisation of the service. Rights of 
victims are important too and Lithuania is happy that the Commission is doing something 
on that. 

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Peter Csonka (DG JLS): More will be done on victims’ rights. A proposal to amend the 
2001 Framework Decision on victims is due in the second half of 2009. 

Bernhard Weratschnig (Austria’s Ministry of Justice): Austria has always supported a 
procedural  rights  instrument  and  will  agree  to  it.  In  terms  of  its  scope,  that  is  something 
we’ll come back to later. 

Trevor  Stevens  (Committee  for  the  Prevention  of  Torture):  Stevens  could  not  give  a 
Council  of  Europe  position  on  this  question.  From  on-site  visits  to  prisons  and  police 
stations  in  some  47  countries,  he  pointed  to  huge  differences  between  MS  on  procedural 
rights. Where rights exist, they are not necessarily applied in practice. The CPT has a lot of 
information  that  it  is  willing  to  share  with  researchers  (e.g.  on  access  to  lawyers,  doctors 
etc.) and the Commission and participants to this meeting can contact the CPT when they 
come to Strasbourg. If there is EU legislation in this area and the CPT likes it, it will check 
carefully if it is complied with. 

Peter  Csonka  (DG  JLS):  Thanked  Stevens  for  the  information  and  monitoring  offers.  If 
there are standards, the CPT is well placed to check what is done in practice as we see a 
growing gap between legislation and what happens in practice. 

Holger  Matt  (European  Criminal  Bar  Association):  Speaking  as  a  European  citizen, 
Matt said that European citizens who are arrested in another country expect to be told in a 
language they understand what the matter for which they have been arrested is about. The 
right to a translator must be established once and for all. It is difficult to understand why we 
are  hesitating  about  this.  We  need  practical  means  to  enforce  this  right  and  therefore  we 
need an EU instrument. The right to silence is also part of the core rights that we need to 
discuss when addressing procedural rights. 

Karoly Bard (Central European University): The slowness of the ECtHR procedure is a 
strong argument as is the fact that it is always reactive. The ECtHR is not that much help in 
enforcing the rights of individuals. We need more than the rights of the ECHR. 

Anthony Barbara (Maltese Ministry of Justice): The situation needs to be improved but 
the  question  is  how.  In  Malta,  if  you  keep  silent  and  do  not  answer  questions  from  the 
police, no inference of guilt can be taken. 

Cyprus:  Cyprus’s  position  is  the  same  as  in  2004.  It  does  not  think  that  legislation  is 
needed but may change its views in the near future. 

Theme 2 – Mutual recognition and mutual trust – What is necessary by way of procedural 
rights to promote mutual trust? 

Gisèle Vernimmen presented the ULB study on this. In her conclusions, she said that there 
was broad consensus that something needed to be done. The options are: 

Soft law/best practice – less priority/resources are given to this as for binding rules and it 
needs good will to ensure that it works. 

A binding instrument – this would improve the respect of rights thanks to the involvement 
of  the  ECJ  and  would  make  free  movement  of  people  easier  as  there  would  be  the  same 
safeguards in different countries 

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Accompanying measures (e.g. training and networking) 

In  terms  of  which  rights  to  cover,  a  Letter  of  Rights  is  fundamental.  Even  if  it  is  not 
mandatory, there is a lot of positive experience in several MS and it should be encouraged. 

Even  if  there  is  rapprochement  between  MS,  this  is  not  enough.  There  needs  to  be 
information and training, networking and double defence (i.e. in the executing and issuing 
MS – this has consequences for legal aid as if a person gets it in one country they should 
get it in the other) 

Theme 3 – Crossborder v domestic proceedings 

Discussion on whether any future EU legislation should be limited to crossborder cases or 
should cover crossborder and domestic proceedings 

Peter Csonka (DG JLS) asked participants which option they would prefer. If there should 
be  separate  proceedings  (crossborder  ones  and  domestic  ones),  he  asked  how  this  would 
work in practice given that a domestic case can become a crossborder one at any time. 

Jodie Blackstock (Justice): One main reason why the Commission’s proposal was rejected 
in  2007  by  some  MS  was  about  the  perceived  lack  of  a  legal  basis  for  adopting  an 
instrument.  Justice  thinks  that  this  needs  to  be  tackled  head  on  and  argues  that  there  is  a 
legal basis. Justice sees making a division between crossborder and domestic proceedings 
as unworkable in practice as cases can switch from crossborder to domestic or vice versa 
after investigations have begun. Justice argues that, to further cooperation, there need to be 
procedural safeguards covering both crossborder and domestic proceedings. It believes that 
the  five  rights  identified  are  necessary.  Justice  argues  that  both  the  ECtHR  and  CPT  can 
only  deal  with  breaches  after  they  have  occurred.  For  Justice,  unless  the  EU  has  an  EU-
wide  set  of  standards  applying  in  all  circumstances,  which  defence  lawyers  can  rely  on, 
judicial  cooperation  will  not  be  realised.  Binding  regulation  with  detailed  provisions  on 
how they can be used and how they can be measured is essential. 

Ilias Anagnostopoulos (Chair of the CCBE Criminal Law Committee): We know from 
EAW procedures that it is not enough to have a defence counsel in the executing MS as it is 
necessary to have one in the issuing MS too. For a European Evidence Warrant, advice is 
needed in both the executing and issuing MS. He does not believe that a legal instrument 
limited to crossborder cases would be an alternative to an EU-wide instrument. This is not 
only because of the possible creation of a double standard but such a policy would be a step 
backwards towards the era of extradition proceedings. Although there are good grounds to 
pay special attention to the crossborder element, this could not be an alternative to an EU-
wide catalogue of procedural rights. A new EU legal instrument would set in motion all the 
monitoring mechanisms that are currently not there. 

Rosalind Campion (UK’s Office for Criminal Justice Reform): The UK is very keen to 
look  at  anything  that  will  enhance  crossborder  cooperation.  The  discussion  is  very 
theoretical. It would be better to look at a text and see if there is a legal basis or not. 

Alina Barbu (Romanian Ministry of Justice): Romania strongly supports an instrument 
on this topic but is cautious about the language and substance. Romania is concerned that 
national  and  EU  legislation  would  mean  different  legally  binding  instruments.  She  sees  a 
difficulty in drawing a line between crossborder and domestic cases in criminal proceedings 

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and thinks that it would be difficult to explain why there were different legal proceedings if 
that were to be the case. 

Johan  Callewaert  (ECtHR):  The  Council  of  Europe  acknowledged  that  the  ECtHR  was 
too slow at the moment but has decided to change the order in which cases are dealt with. 
Up until now they were dealt with in the order that they came in but from now on cases will 
be  given  a  priority-based  order.  So  important  cases  and  those  where  there  would  be  a 
danger in delay will be prioritised. The reflection paper talks of the ECtHR and the ECHR 
needing  a  higher  profile  yet  three  quarters  of  disputes  going  to  the  ECtHR  are  clearly 
unfounded so possibly their profile is too high. If a new instrument is drafted it is important 
to ensure that the text is compatible with the ECHR otherwise any doubts about standards 
and  compatibility  between  the  ECHR  and  the  new  instrument  would  give  rise  to  a  big 
number of disputes. The Council of Europe is in favour of an EU instrument if it is fully in 
line with the ECHR and the standards set are not lowered.    

Eberhard Siegismund (German Ministry of Justice): He sees the problem as not being 
legal issues but being political will. 

Lorenzo  Salazar  (Italian  Ministry  of  Justice):  Italy  is  against  limiting  the  scope  of  a 
future instrument to crossborder cases alone because of the need to ensure the principle of 
equality  between  citizens.  Differentiating  between  crossborder  and  domestic  cases  would 
be absurd. 

Vania Costa Ramos (Law Faculty of Lisbon University): She argued that as all citizens 
of  the  EU  are  citizens  of  the  EU  regardless  of  their  nationality  there  should  be  the  same 
rights  for  all.  There  should  be  a  decision  setting  out  a  list  of  basic  rights  and  this  would 
have to include all scenarios. If more than one jurisdiction may apply, solutions could be 
pinpointed.  There  could  be  practical  mechanisms,  e.g.  with  legal  assistance.  If  it  is  a 
national case, then the accused would not need a lawyer in a different country. Crossborder 
cases  are  more  complicated  and  sometimes  might  need  specific  mechanisms  to  deal  with 
that. 

Professor  Ed  Cape:  The  people  implementing  the  rights  will  probably  be  ordinary 
policemen, lawyers and judges. In England and Wales for example, it takes time for rights 
(e.g. for a recording to be made) to become entrenched in daily practice. If the instrument is 
confined to crossborder cases then the policeman who deals with them will probably come 
across  them  rarely  and  so  a  lot  of  mistakes  will  be  made.  This  will  be  because  the 
policeman has not recognised it as a crossborder case or is not aware of the special rules, 
which could lead to more litigation and appeals. 

Zuzana  Cernecka  (Czech  Ministry  of  Justice):  The  legal  basis  continues  to  be  a  key 
question for the Czech Republic. Procedural rights may be regulated at EU level only for 
crossborder cases – this is purely a question of the legal basis. If it is limited to crossborder 
cases then the Czech Republic is willing to cooperate and is open to more discussion. 

Possible ways to proceed 

Signe  Ohman  (Swedish  Ministry  of  Justice):  The  protection  of  individuals  in  criminal 
proceedings is a top priority for the Swedish presidency of the EU. There seems to be an 
understanding that mutual trust and procedural safeguards go hand in hand – that was clear 

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from  Gisèle  Vernimmen’s  presentation.  We  need  to  strengthen  procedural  safeguards  to 
increase mutual trust and we need to focus more on the rights and needs of individuals. 

There  is  more  free  movement  than  ever  before  and  we  need  to  address  the  problems  that 
can  arise  because  of  increased  mobility.  The  language  of  proceedings  and  understanding 
the system in that other country are key. 

It  is  time  to  resume  discussion  on  procedural  rights  in  criminal  proceedings  and  to 
strengthen  these  rights.  It  is  a  delicate  and  complicated  issue.  There  were  three  years  of 
discussion over the last proposal. We think that a step by step approach is best, focusing on 
a few rights at each step so that we can go into real depth as regards the problems. We think 
we should work with practical measures. We believe that we should start with the right to 
translation  and  interpretation  and  then  continue  with  other  rights  (e.g.  to  a  defence,  to 
information etc.) We need political agreement on a strategy and we are thinking of putting a 
roadmap  forward  in  July.  This  approach  will  minimise  the  risk  of  failure.  There  is  a 
conference  in  Stockholm,  from  22  to  23  July,  on  justice  in  the  EU  from  the  citizens’ 
perspective.  It  is  about  citizens’  access  to  criminal  justice  and  rights  in  criminal 
proceedings. 

Priscilla Guillotin De Corson (Fair Trials International): She was interested in the order 
of  the  Swedish  proposals.  She  asked  how  many  Framework  Decisions  would  be  adopted 
during  the  Swedish  presidency  of  the  EU  and  what  guarantees  there  were  that  something 
would be done in the next presidencies. 

Signe  Ohman  (Swedish  Ministry  of  Justice):  Ideally  Sweden  would  adopt  a  bunch  of 
Framework Decisions during its presidency but fears that that will not be possible. Sweden 
hopes that agreement on the first step is possible and thinks that a roadmap will ensure that 
we deal with all the fundamental procedural rights. Hopefully future presidencies will make 
it a top priority too. 

Eberhard Siegismund (German Ministry of Justice): Siegismund supported the Swedish 
initiative  and  approach  although  he  would  have  preferred  a  broader  approach.  A  key 
question is how to involve future presidencies. There also needs to be a parallel approach 
with practical measures being linked to the formal approach. 

Peter Csonka (DG JLS): The Commission will submit a proposal on practical measures, 
drawing  inspiration  from  a  paper  by  the  six  countries  that  suggested  an  alternative  to  a 
Framework Decision earlier. He asked future presidencies (Spain and Belgium) what they 
would do. 

Spain: Spain is convinced that this matter needs to be dealt with. The delegate could not 
give  Spain’s  official  position  for  its  future  presidency  but  assured  participants  that  the 
country would do all it can to make progress. 

Serge  de  Biolley  (Belgium’s  Permanent  Representation  to  the  EU):  If  the  Swedish 
presidency  process  becomes  dynamic,  Belgium  will  be  behind  it.  The  delegate  would 
imagine it to be one of the top priorities of the presidency but could not commit to that. 

Eszter  Viczko  (Hungarian  Ministry  of  Justice):  Hungary  supported  the  proposal  but 
could not say what the presidency’s proposals would be. 

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Lorenzo  Salazar  (Italian  Ministry  of  Justice):  Italy  would  have  hoped  for  something 
more ambitious but, given the result last time, the Swedish approach may turn out to be a 
good one. The delegate hoped that protection of European citizens would be a fundamental 
part of the Stockholm programme. 

Peter  Csonka  (DG  JLS):  The  Stockholm  programme  will  be  based  largely  on  a 
Commission Communication and defendants’ rights are an important priority in that.  

Bernhard Weratschnig (Austria’s Ministry of Justice): Austria is in favour of resolving 
the issue of interpreting and agrees with the Swedish proposal. 

Claudia  Gualtieri  (European  Parliament  LIBE  Committee):  A  proposal  for  a 
recommendation  (focussing  on  fundamental  rights,  mutual  recognition,  the  evaluation  of 
justice  and  judicial  training)  is  being  discussed  in  the  LIBE  Committee  with  a  vote  next 
week  and  then  more  discussion  in  plenary  in  May.  The  starting  point  is  that  EU  citizens 
must  be  treated  in  the  same  way.  The  recommendation  makes  a  list  and  refers  to 
presumption of innocence,  a  Letter  of  Rights, legal  advice,  information about the  reasons 
for the charges, access to an interpreter and documents being available in a language that 
the citizen understands. 

Rosalind  Campion  (UK’s  Office  for  Criminal  Justice  Reform):  She  asked  when  the 
European  Parliament’s  recommendations  were  likely  to  be  ready.  She  sees  the  Swedish 
approach,  to  take  a  real  problem  and  solve  it  with  detailed  legislation  and  practical 
measures and not just replicate the ECHR, as very ambitious. She asked for the areas in the 
roadmap to have an impact assessment on the proposals put forward. 

Peter  Csonka  (DG  JLS):  There  is  an  obligation  to  do  an  impact  assessment  and  this 
meeting is part of it. 

Claudia Gualtieri (European Parliament LIBE Committee): The recommendations are 
to be voted on in committee next week and go to plenary in the first week of May. 

Signe Ohman (Swedish Ministry of Justice): Sweden sees its approach as very ambitious 
– a legislative document and a document with practical measures only on interpreting and 
translation.  The  old  Framework  Decision  proposal  had  a  few  articles  on  the  right  to 
interpreting and translation and more or less repeated what is in the ECHR in the end. 

Markko  Kunnapu  (Estonia’s  Ministry  of  Justice):  Estonia  supported  the  Framework 
Decision proposal and would support the new initiative. 

Frederic Baab (France’s Ministry of Justice): France is in favour of an instrument that 
would be at least at the level of the standards set by the ECHR and by the ECtHR itself. 
Sweden  has  chosen  to  focus  on  some  aspects  and  has  wisely  chosen  a  relatively 
uncontroversial idea, the right to be able to understand what you are being accused of in a 
criminal procedure, i.e. the question of translation and interpreting. For the other rights, we 
need more refined analysis and we need a roadmap.  

As  for  the  domestic  vs  crossborder  proceedings  issue,  supposing  new  evidence  came  to 
light  in  another  country,  two  different  judges  in  France  might  come  to  two  different 
decisions as to whether to ask the other country for the evidence. It is the same dossier but 
with two different treatments. If decisions are taken on a case by case basis like this, this 

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shows the difficulty of putting an instrument into practice. It is important to decide which 
criteria to take to determine whether a given case is a crossborder one or not. 

Zigmund Dundurs (Latvia’s Ministry of Justice): In principle, Latvia is very supportive. 
It  is  important  not  to  distinguish  between  crossborder  and  national  cases.  The  Swedish 
approach to focus on individual rights seems very reasonable. 

Kirsi  Pulkinnen  (Finland’s  Ministry  of  Justice):  Finland  is  very  happy  to  hear  that 
Sweden is continuing the work on procedural rights and thinks that the ‘one right at a time’ 
approach by Sweden is a good one. 

Gert  Vermeulen  (Ghent  University):  Procedural  rights  are  particularly  relevant  in 
domestic  cases  and  not  so  much  in  crossborder  cases.  It  is  primarily  domestically  where 
something needs to be done. With regard the French example, perhaps minimum standards 
should be agreed for particular areas (e.g. house search). One idea is that, if there are two or 
three MS involved in a case where a house search or phone tap is needed, the agreement 
could be that the best rights from the three MS accrue to the individual. That would avoid a 
binding minimum instrument for the whole EU. 

Peter Csonka (DG JLS): Peter Csonka wanted to know how this could be done, e.g. using 
a form with open boxes to be ticked if certain rights are allowed. 

Gert Vermeulen (Ghent University): Gert Vermeulen suggested a step by step approach 
so  that,  when  a  piece  of  evidence  was  obtained  from  abroad,  it  would  be  deemed  as 
acceptable  evidence  if  it  lived  up  to  the  standards  of  the  ECHR.  If  there  were  need  for  a 
phone tap abroad, the approach could be that the better rights [between the two countries 
involved] apply. 

Peter  Csonka  (DG  JLS):  More  time  is  probably  needed  to  write  this  paper.  The 
Commission  plans  to  continue  working  on  evidence  and  will  table  a  Green  Paper  on 
evidence, including the problem of admissibility. We will see if we need evidence-related 
guarantees, e.g. for surreptitious techniques such as phone taps. 

Anna  Ondrejova  (Slovakia’s  Ministry  of  Justice):  Slovakia  is  open  to  talk  with  the 
Commission  and  the  Swedish  presidency  so  that  this  legislation  reaches  a  balanced 
solution. Sweden’s focussed approach is interesting. 

Professor  Erik  Hertog  (Lessius  University  College):  Speaking  on  behalf  of  legal 
interpreters and translators, Professor Erik Hertog said that mutual trust between MS cannot 
work  if  it  is  not  built  on  mutual  trust  in  communication  (including  interpreting  and 
translation)  between  MS.  A  reference  to  interpreting  and  translating  was  included  in  the 
Tampere Programme in 1998 and in the 2003 Green Paper. The latter referred to training, 
certification, quality and a code of ethics – so everything was included and this was a very 
positive  document.  However,  the  Framework  Decision  proposal  on  procedural  rights  was 
reduced  to  a  few  general  comments  on  the  right  to  an  interpreter  for  example.  Legal 
interpreters and translators are now ready and welcome the Swedish proposal.  

They want an instrument that is linked to quality (e.g. quality assurance and monitoring of 
quality) to guarantee mutual trust. Mention in the Swedish proposal should be made to ‘the 
right to a competent interpreter’. Quality refers not just to training but to a comprehensive 
account  of  what  MS  can  do  to  have  a  quality  interpreter.  A  report  from  the  Reflection 

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Forum  on  Multilingualism  and  Interpreter  Training  shows what interpreters would like to 
see in the Swedish proposal. We think the step by step approach or ‘salami tactic’ taken by 
Sweden  is  a  good  one  because  putting  the  whole  package  of  rights  on  the  table  will  not 
work. If we start with the right to translation/interpretation, this could create momentum for 
the  rest  of  the  package.  A  roadmap  would  allow  for  subsequent  EU  presidencies  to  deal 
with one right each. Interpreters and translators are very positive about the content of the 
Swedish  proposal  and  because  it  is  Sweden,  which  has  a  cast  iron  reputation  regarding 
interpreters and translators – the Stockholm Institute is an excellent training centre. 

There is an idea to create a single register of interpreters and translators as part of e-Justice 
plans.  But  linking  up  registers  does  not  make  sense  unless  criteria  are  set  as  to  what  the 
abilities of the interpreters and translators are. There is a conference on 26-28 November in 
Antwerp, where a European Legal Interpreters’ and Translators’ Association (EULITA) is 
due to be set up, and to which participants are welcome. 

Peter Csonka (DG JLS): Peter Csonka made it clear that the proposal would be coming 
from the Commission (not Sweden) and that the roadmap would be coming from Sweden. 
The  two  should  be  seen  in  combination.  The  right  would  be  about  either  a  right  to  a 
qualified interpreter and translator or, by merging these rights, the right for the accused to 
understand  the  charge  and  follow  the  proceedings.  He  asked  what  else  translators  and 
interpreters want to see in the legislation/best practice paper and if there were figures as to 
the  costs  for  these  services  at  an  average  trial.  He  added  that  paying  interpreters  and 
translators would need state funding and possibly EU funding. 

Professor Erik Hertog (Lessius University College): Professor Erik Hertog did not have 
figures to hand but referred to a lengthy passage on the costs in a Council document on the 
costs of justice. Concerns of MS include the cost of training, of monitoring quality and of 
paying translators and interpreters. Training does not need to cost that much – there are lots 
of strategies to keep down initial training costs. In one system, candidates can be tested in 
their  language  skills  before  being  admitted  to  a  course  that  includes  legal  practitioners 
before being tested again at the end of the course. In terms of best practice, the report on 
interpreter  training  shows  what  interpreters  want  to  see  achieved  in  practice.  The  EU’s 
Multilingualism  Commissioner  Leonard  Orban  is  understood  to  be  considering  a  similar 
report for translators.  

Peter Csonka (DG JLS): Peter Csonka was appreciative of any help that Professor Hertog 
could give on the cost issue. 

Claudia Gualtieri (European Parliament): A step by step approach is good but Claudia 
Gualtieri wondered if the Commission proposal would home in on specific aspects such as 
a  register  and  the  costs  of  interpretation.  High  quality  interpreters  and  translators  are 
needed. As a judge in Venice, she had encountered the problem of finding interpreters for 
Chinese, especially because there are hundreds of dialects. The solution had been for police 
to scour Chinese restaurants to find someone speaking a particular dialect. She wondered if 
the instrument would stipulate that all interpreters and translators would have to be on an 
official register and, if so, what would happen with the cases where individual dialects were 
needed. 

Peter Csonka (DG JLS): These questions will be covered in impact studies. Perhaps they 
will be looked at in best practice. 

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Ivanka  Ivanova  (Open  Society  Institute):  Ivanka  Ivanova  is  involved  in  monitoring 
police custody and has encountered a serious problem with rare languages in Bulgaria. It is 
easy to find certified interpreters for languages such as English, French or German but not 
so for languages such as Finnish or Romanian. The need for such languages has risen due 
to  growing  numbers  of,  for  example,  Finnish  and  Romanian  tourists.  Police  stations  use 
different  creative  solutions,  such  as  asking  local  teachers  for  help.  Her  question  was  if 
police stations/prosecutor services were expected to have a full list of interpreters covering 
all  potential  languages  that  could  be  encountered  or  could  restrict  the  implementation  of 
safeguards to the most common languages. 

Ivanka  Ivanova  said  that  arguments  such  as  that  the  ECtHR  is  overburdened  and  that  the 
ECHR  is  not  implemented  should  lead  to  discussion  on  how  to  reduce  the  burden  and 
improve  implementation  rather  than  having  a  new  legally  binding  instrument.  A  new 
instrument would be worth having if there is proof that EU instruments in criminal matters 
are leading to violations of rights of individuals. In the justification of the new instrument it 
is  important  to  take  into  account  traditional  procedural  rights  and  other  safeguards,  for 
example  medical  help  during  detention.  A  step  by  step  approach  to  procedural  rights  is  a 
good  approach,  starting  with  the  rights  that  are  more  violated  in  the  instruments  that  we 
have and the right to interpretation is one of those. There is also an issue relating to mutual 
recognition and the exchange of data between MS. Different MS have different standards of 
data  protection.  There  is  a  concern  that  the  police  and/or  prosecutors  may  use  data  to 
prosecute other crimes or profile people. 

Peter  Csonka  (DG  JLS):  Access  to  medical  help,  especially  for  poorer  suspects,  was  in 
the  Commission’s  original  2003  proposal  but  was  thrown  out  by  MS.  But  the  issue  will 
come back. As for the problem of finding qualified interpreters at short notice, at night and 
in exotic languages, there is no easy solution here. 

Trevor  Stevens  (Committee  for the  Prevention  of  Torture):  Efforts  are  being  made  in 
Strasbourg  to  improve  the  ECtHR  situation  but  this  is  unlikely  to  make  the  machinery  in 
Strasbourg perfect and so there is a need for an EU instrument. He was very interested in 
the roadmap and suggested to Sweden that the next issue to address should be access to a 
lawyer as it is a fundamental safeguard to prevent ill treatment. Issues here could be when a 
suspect  can  have  access  to  a  lawyer,  for  how  long,  what  the  system  is  for  appointing  a 
lawyer,  the  lawyer’s  status  in  a  police  station  and  the  quality  of  assistance  (e.g.  just  a 
trainee or someone more experienced). 

Minimum standards must bear in mind evolving case law in this area (e.g. the Salduz case) 
so a clause would be needed to take case law into account. 

Peter Csonka (DG JLS): Peter Csonka asked if access to a qualified translator/interpreter 
was a problem encountered by the CPT. 

Trevor Stevens (Committee for the Prevention of Torture): Trevor Stevens sees many 
examples  of  what  Claudia  Gualtieri  spoke  about  and  said  that,  although  unsatisfactory, 
there  was  a  need  for  ad  hoc  arrangements  for  interpreters.  Recognising  qualified 
interpreters is very important but the problem is how best to organise this because it costs a 
lot  of  money.  He  fears  that  ad  hoc  arrangements  will  be  necessary  and  that  they  are 
sometimes better than no interpreter at all. 

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Frederic  Baab  (France’s  Ministry  of  Justice):  On  access  to  lawyers,  it  is  important  to 
realise that there are complexities, for example that the term ‘garde à vue’ is not the same in 
Germany as in France. In Germany, it comes at a later stage in the procedure (at the official 
notification of accusations stage). If the issue of access to a lawyer is addressed then it is 
important to broaden this to access to the file as, if the lawyer has no access to the file, the 
suspect  can  perhaps  do  without  the  lawyer.  On  interpreting/translating,  France  suggested 
that the Commission kept to general provisions. Going into details such as how an expert is 
put  on  a  register  may  lead  to  difficulties  and  a  possible  impasse  because  many  countries 
will refuse to change their systems without understanding the need to do it. 

Holger Matt (European Criminal Bar Association): Interpreting and translating is very 
important  so  we  need  clear  and  uniform  rules  as  far  as  possible.  ECBA  will  support  this 
initiative.  The  need  for  an  additional  legally  binding  instrument  is  justified  because  we 
know  that  there  are  lots  of  shortcomings  in  procedural  rights  and  we  recognise  that  the 
ECtHR cannot deal with all these shortcomings. The relevance of a new instrument is that 
then MS can guarantee that their citizens are dealt with properly in the other 26 MS. ECBA 
offered all MS, the Commission and the European Parliament its assistance and expertise. 

Natacha  Kazatchine  (Amnesty  International):  Amnesty  International  (AI)  has  been 
supporting the idea of a new instrument from the beginning. The Swedish EU presidency’s 
belief  that  the  EU  bears  responsibility  to  protect  the  rights  of  individuals  is  the  starting 
point  for  AI.  AI  has  denounced  Italy’s  security  package,  suspects  being  held 
incommunicado in detention in Spain and violence by law enforcement authorities and sees 
a lack of redress for victims of this. 

AI  supports  a  wide  instrument,  covering  rights,  monitoring  of  rights,  crossborder  and 
domestic  cases  and  for  it  to  be  binding  on  MS.  Legislation  will  not  solve  everything  but 
will set benchmarks that will hold MS to account and should foresee oversight mechanisms. 
AI hoped for a more comprehensive approach from Sweden as, for example, it is difficult 
to  have  an  agreement  on  translation/interpretation  without  having  an  agreement  on  what 
documents are given to the suspect. Rights are interlinked and some rights run the risk of 
being left aside. The first right to be looked at should not become an end in itself. AI wants 
a  clear  and  binding  agenda  with  timelines  agreed  by  MS.  It  should  not  preclude  the  EU 
from  carrying  on  with  other  rights,  including  practical  measures.  It  should  not  stop 
reflection on monitoring/assessing what is going on in MS. 

Peter  Csonka  (DG  JLS):  The  Commission  is  committed  to  continuing  work  beyond  the 
first proposal. 

Signe  Ohman  (Swedish  Ministry  of  Justice):  MS  want  added  value  and  not  to  repeat 
what is in the ECHR so Signe Ohman believes that MS will be willing to discuss details. 
Failure with the first procedural right would mean failure with the broader initiative so she 
was anxious to avoid failure. The first right is the first of several steps and is not a single 
initiative on interpreting. That is the idea of the roadmap. 

Professor Erik Hertog (Lessius University College): Professor Erik Hertog was anxious 
to stress that he did not want to give the impression that translators/interpreters were the top 
priority  but  pointed  out  that  that  lawyers,  judges  or  police  cannot  do  important  tasks 
without the support of a translator and interpreter that they can rely on. In terms of training 
and education, a study has shown that over half of MS have no form of training for legal 

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interpreters. Yet legal translators and interpreters are used every day. The problem of rarer 
languages needs a solution (although each MS can cover 80-85% of its needs with 10 to 15 
languages).  A  solution  is  set  out  in  the  report  on  training  interpreters  and  involves 
language-independent  training.  Training  and  a  register  should  be  what  the  Commission 
proposal  is  based  on  and  these  should  not  incur  undue  costs.  On  training,  if  one  looks  at 
best practice in the report, most cases can use a trained interpreter but, where they cannot, 
then it is important to justify it. For example, if detention can be for only 24 hours and no 
sworn interpreter with a particular language is available, then it is justifiable to make do as 
best one can. MS should have a register of trained interpreters, possibly split into those with 
a basic or high level of training. 

Miroslav Krutina (Defence lawyer): Miroslav Krutina welcomed the move to support the 
human rights of defendants and victims in the EU. He liked the idea of the Letter of Rights 
and gave examples of ones that the Czechs had for witnesses and for defendants. But they 
were too complicated to understand and the Czech bar has drafted its own model.  

Susan Clements (UK Law Societies): The UK Law Societies Joint Brussels Office calls 
for binding minimum procedural rights across the board, both  cross-border and  domestic, 
and  not  a  lowering  of  current  standards.   They  emphasise  the  importance  of  effective, 
accessible  and  timely  means  of  redress  for  individuals  at  MS  level.  Among  other  things, 
minimum  procedural  rights  applicable  throughout  Member  States  may  lead  to  defendants 
having more confidence in the process in other Member States and therefore for example 
consenting to their return under the European Arrest Warrant. Minimum procedural rights 
should provide clarity and thereby potentially remove pointless appeals. 

Gert Vermeulen (Ghent University): Gert Vermeulen was concerned that the debate was 
moving  too  much  towards  the  issue  of  quality  of  interpreters  and  translators.  While 
important, he could not see its connection with procedural rights. 

Nadejda  Hriptievschi  (Moldova’s  Public  Defender’s  Office):  Nadejda  Hriptievschi  is 
very supportive of an EU instrument and does not understand the concern about having the 
ECtHR as the ECtHR is a last remedy. Legal safeguards are not a priority for governments 
and so the EU must come up with measures here. If a step by step approach is the only way 
then that is alright. 

Lorenzo Salazar (Italian Ministry of Justice): The skills and costs [of interpretation and 
translation]  are  the  main  points  for  a  future  proposal  which  the  Commission  and  Sweden 
are  proposing.  It  is  important  to  take  into  account  the  different  expectations  of  MS.  The 
Commission  must  proceed  pragmatically  and  the  Swedish  approach  is  probably  a  good 
thing. Politically, care is needed not to disappoint expectations and care is needed with the 
issue  of  regulating  a  profession  with  high  costs.  If  it  does  go  in  this  direction,  the 
Commission  must  pinpoint  its  role  in  terms  of  financial  support.  The  Commission  has  a 
role to play in the training of interpreters. 

Deirdre Duffy (Irish Council for Civil Liberties): Procedural rights for suspects are very 
much separate from those for victims but are connected. If MS want added value and proof, 
she suggested that MS talk to practitioners in MS. 

Priscilla Guillotin De Corson (Fair Trials International): Priscilla Guillotin De Corson 
supported the protection of all procedural rights but said that she was happy to work with 

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interpretation first. She pointed to a practical problem that, where there was no access to a 
lawyer, a suspect would hope for legal advice from the interpreter but that this was not the 
interpreter’s  role.  To  facilitate  the  roadmap,  she  suggested  putting  in  place  pilot  projects 
and training with regard to access to a lawyer to prepare the ground for the next measures. 
She  is  ready  to  provide  MS  with  studies  of  cases  to  show  the  needs  and  problems  of 
citizens when faced with systems in foreign countries. 

Matevz  Pezdirc  (Slovenian  Ministry  of  Justice):  It  would  be  useful  if  all  criminal  and 
procedural  codes  were  translated.  If  they  were  in  three  major  languages  or  all  languages, 
that would help practitioners and citizens when entering into discussion with the police or 
authorities.  If  MS  want  to  do  something  on  procedural  rights,  they  must  make  some 
concessions,  change  legislation  and  provide  finance  if  they  are  to  go  further  than  the 
ECHR. 

Peter  Csonka  (DG  JLS):  Peter  Csonka  concluded  the  meeting  with  some  preliminary 
conclusions.  He  understood  that  there  was  support  for  the  ‘salami  approach’/long-term 
vision but that some MS still needed to be convinced. He noted the reluctance of the Czech 
Republic and other MS on it being a broader instrument covering domestic and crossborder 
cases. He said that care must be taken for the new instrument not to fall below the standards 
of the ECtHR. He stressed that rights were not just for suspects but also for victims and the 
Commission will work on victims’ rights too. The Commission is preparing a new proposal 
amending  the  2001  Framework  Decision  on  victims’  rights  and  two  other  Framework 
Decisions, on the trafficking of human beings and the sexual exploitation of children. 

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ANNEX 3  

[excerpt  from  Study  on  the  transparency  of  costs  of  civil  judicial  proceedings  in  the 
European Union", Final Report pages 198 – 201] 

Criteria used in determining rates relating to the intervention of a translator / interpreter 
during the procedure 

When the judge requires for the submitted documents to be translated, translators’ fees can 
be calculated on different bases: 

Depending  on  the  number  of  characters:  Generally  the  scale  is  set  for  55  characters  that 
correspond  to  a  line.  It  is  used,  for  example,  in  Germany,  Austria  and  Luxembourg. 
Significant  differences  in  rates  can  be  observed.  In  Austria,  costs  vary  between  1.09  and 
2.03 Euros (roughly the same rates in Luxembourg), while in Germany they vary between 
1.25 and 4 Euros for the same number of characters. 

Depending on the number of words: Costs vary between 0.05 and 0.20 Euros on average. 
This  is  the  case  of  Bulgaria,  Denmark,  Spain,  and  Finland.  In  other  countries  like 
Sweden, The Netherlands and Malta, the rates can go from 0.49 Euros / word and up 
to 1.49 Euros / word in the United Kingdom. 

Depending  on  the  number  of  pages:  This  calculation  basis  is  the  most  commonly  used 
which  explains  the  differences  in  tariffs.  On  average,  prices  vary  between  8.50  and  24 
Euros  per  page  in  Bulgaria,  Estonia,  Greece,  Italy,  Latvia,  Lithuania,  Malta  and 
Slovakia.  In  Scandinavian  countries  such  as  Sweden,  Denmark  and  Finland,  the 
average  cost  is  40  Euros  per  page.  Slovenia  in  rather  expensive  as  the  cost  can  reach 
50.49 Euros per page. 

Depending on the number of hours: Concerning these tariffs, there is no real similarity in 
what is applied. 

- France → 15 to 20 Euros per hour; 

- Luxembourg → average : 43.58 Euros / hour; 

- Czech Republic→ from 3.74 to 13.10 Euros per hour; 

- Romania → minimum of 5.93 Euros per hour. 

It must be said that Ireland is the only country where a rate based on the number of days is 
implemented (about one hundred Euros per day). The same appears in the data provided by 
the  National  Experts.  In  Cyprus  the  average  fees  charged  by  translators  during  the 
proceedings  are  85  Euros.  These  vary  from  68  to  102  Euros  for  a  procedure.  When  an 
interpreter is required to translate the words of any parties or the witnesses’ and to explain 
the course of the proceedings to those concerned, the fees are calculated on an hourly basis 
depending on the number of days during which the interpreter was needed. The charges are 
all  different.  Some  other  factors  may  affect  interpreters’  fees  such  as  simultaneous  or 
delayed translation, or the specificity of language (sign language, communication with deaf, 
blind and hearing-impaired; Slovakia) 

EN 

63 

   EN 

 
The same is true when the service takes place outside of normal working hours (between 8 
pm and 8 am), outside the normal working days (Saturdays, Sundays and public holidays), 
during holidays and when the translators’ and the interpreters’ work must be carried out in 
an  emergency  situation.  In  these  cases,  costs  may  be  increased  from  fifty  percent  to  one 
hundred percent (e.g.: Romania, Slovenia). 

The difficulty, the specificity of the language translated (translator or interpreter), as well as 
the technicality of the terminology of the document to be translated have also a bearing on 
the fees. In Greece, for instance, costs can vary significantly depending on the nature of 
the documents like birth or marriage certificates, bank statements, personal correspondence 
or political documents, medical, economic or scientific reports or even autopsy reports and 
court decisions. 

In Lithuania, Slovenia, Slovakia and Austria, the difficulty and rarity of the language 
is  a  readily  accepted  criterion  in  setting  rates.  The  costs  are  always  lower  for  European 
languages like English and French whereas languages such as Japanese, Chinese or Arabic 
generate higher costs.  

The case of Slovenia presents a particular feature because distinction is made between the 
translators  and  interpreters  appointed  by  the  Court  and  those  chosen  by  the  party.  Costs 
vary  depending  on  this  distinction.  When  they  are  appointed  by  the  Court,  prices  will  be 
fixed by the Court. If it is a party who employ a translator or interpreter, the fees will result 
from an agreement between the parties and the translator or interpreter. On average, in the 
case of an appointment by the Court, the costs vary between 25.25 and 41.31 Euros / page 
while in the other case they vary between 25.87 and 50.49 Euros / page. 

Additional compensation: In some countries provisions are made in the form of allowances 
or compensations for expenses covering the cost of daily life. These allowances can cover 
the costs of transport, accommodation and catering. For example, in Estonia, the sum of 
three Euros per day minimum is granted for meals and thirteen Euros per day for housing 
costs.  Some  similar  amounts  are  granted  in  Italy,  Lithuania,  Poland,  Romania  and 
Slovakia.  

EN 

64 

   EN 

 
EN 

65 

   EN 

 
Table 1. Number of non-nationals in each EU Member States46  

ANNEX 4 

COUNTRIES  2000 

2001 

2002 

2003 

2004 

2005 

2006 

2007 

Austria 

758,024  766,055  731,631  755,124  765,303  88,609 

814,065 

826,013 

Belgium 

853,369  861,682  846,734  848,396  860,287  870,862 

900,500 

932,161 

Bulgaria 

25,634  … 

… 

Cyprus 

57,800 

61,600  … 

… 

… 

… 

… 

26,000 

25,500 

83,500 

98,100 

98,000 

118,100 

Czech 
Republic 

228,862  180,261  163,805  179,154  195,394  193,480 

258,360 

296,236 

Denmark 

259,361  258,630  266,729  265,424  271,211  267,604 

270,051 

278,096 

Estonia 

274,309  … 

… 

… 

… 

… 

242,000 

236,400 

Finland 

87,680 

91,074 

98,577 

103,682  107,003  108,346 

113,852 

121,739 

France 

… 

… 

… 

… 

… 

3623,063  3510,000 3650,100

Germany 

7343591  7296817  7318628 7335592 7334765 7287,980  7289,149 7255,949

Greece 

… 

761,438  … 

… 

891,197  … 

884,000 

887,600 

Hungary 

153,125  115,809  116,429  115,888  130,109  143,774 

156,160 

167,873 

Ireland 

126,533  155,528  187,200  215,473  198,732  255,400 

314,100 

452,300 

Italy 

1270553  1464589  1334889 1549373 1990159 2402,157  2670,514 2938,922

Latvia 

619,611  581,508  556,801  532,534  514,966  487,212 

456,758 

432,951 

Lithuania 

… 

35,094  … 

… 

… 

32,327 

32,862 

39,687 

Luxembourg 

159,400  162,285  … 

170,700  174,200  177,400 

181,800 

198,213 

Malta 

8,558 

8,890 

9,564 

10,358 

11,000 

11,999 

12,000 

13,877 

Netherlands 

651,532  667,802  690,393  699,954  702,185  699,351 

691,357 

681,932 

Poland 

… 

… 

700,329  … 

… 

Portugal 

191,143  207,607  224,932  238,746  … 

… 

… 

700,000 

54,883 

276,000 

434,887 

46 http://epp.eurostat.ec.europa.eu/tgm/table.do?tab=table&init=1&plugin=0&language=en&pcode=tps00157 

EN 

66 

   EN 

 
                                                 
COUNTRIES  2000 

2001 

2002 

2003 

2004 

2005 

2006 

2007 

Romania 

Slovakia 

… 

… 

… 

… 

178,154  … 

25,645 

25,929 

25,993 

26,069 

… 

29,854 

29,855 

22,251 

25,563 

32,130 

Slovenia 

42,524 

42,279  … 

44,693 

45,294 

44,285 

48,968 

53,555 

Spain 

923,879  1370657  1977946 2664168 2772200 3371,394  4002,509 4606,474

Sweden 

487,175  477,312  475,986  474,099  476,076  481,141 

479,899 

491,996 

2459934  … 

… 

2760031 2941400 3066,055  3425,000 3659,900

United 
Kingdom 

Total 

Note: (…) = data not available 

EN 

67 

   EN 

 
 
 
 
 
 
 
 
 
Table 2 - Population and percentage of non-nationals in each Member State, number of 
criminal proceedings (incomplete) and serious crimes recorded by the police in 2006 in 
each Member State 

COUNTRIES  Population 
each 

of 
Member 
State 
200747 

Number 
of  Non-
nationals 
in 
each 
MS 200748 

of

% 
Non-
nationals 
in 
each 
MS 
200749 

of 

Number 
criminal 
proceedings 
in 2007 

Serious  Crimes 
Recorded  by  the 
Police 
2006 
(excluding 
misdemeanours)50

Austria 

8,298,923 

826,013 

10% 

Belgium 

10,584,534  932,161 

8.8% 

Bulgaria 

7,679,290 

25,500 

0.3% 

Cyprus 

778,684 

118,100 

15.2% 

Czech 
Republic 

10,287,189  296,236 

2.9% 

Denmark 

5,447,084 

278,096 

5.1% 

Estonia 

1,342,409 

236,400 

17.6% 

Finland 

5,276,955 

121,739 

2.3% 

France 

63,392,140  3650,100 

5.8% 

Germany 

82,314,906  7255,949 

8.8% 

589,495 

1,012,004 

136,410 

(2006 

7,923 

37,97751 

107,997 

statistics)

52 

78,54553 

336,446 

425,093 

51,834 

324,575 

3,725,588 

6,304,223 

5,806,781 
(2006 
figures)54 

Greece 

11,171,740  887,600 

7.9% 

463,750 

Hungary 

10,066,158  167,873 

1.7% 

426,91455 

425,941 

47http://epp.eurostat.ec.europa.eu/tgm/refreshTableAction.do?tab=table&plugin=1&pcode=tps00001&language=

en 

48 http://epp.eurostat.ec.europa.eu/tgm/table.do?tab=table&init=1&plugin=0&language=en&pcode=tps00157 
49http://epp.eurostat.ec.europa.eu/portal/page?_pageid=1996,45323734&_dad=portal&_schema=PORTAL&scre
en=welcomeref&open=/t_popula/t_pop/t_demo_pop&language=en&product=REF_TB_population&ro
ot=REF_TB_population&scrollto=0 

50 http://epp.eurostat.ec.europa.eu/portal/pls/portal/!PORTAL.wwpob_page.show?_docname=702125.PDF 
51 http://www.nsi.bg/SocialActivities_e/Crime_e.htm 
52http://www.mof.gov.cy/mof/cystat/statistics.nsf/All/50F489DBBAA9E96DC22575080024ACA9?OpenDocum

ent&sub=3&e= 

53 http://www.czso.cz/csu/cizinci.nsf/engt/1D003D9229/$File/c08t01.pdf 
54Addition of figures for criminal proceedings at first instance, public prosecution and appellant instance stage. 

http://www.destatis.de/jetspeed/portal/cms/Sites/destatis/Internet/EN/Content/Statistics/Rechtspflege/G
erichtsverfahren/Tabellen/Content75/Gerichtsverfahren,templateId=renderPrint.psml 

EN 

68 

   EN 

 
 
 
 
 
 
 
 
                                                 
COUNTRIES  Population 
each 

of 
Member 
State 
200747 

Number 
of  Non-
nationals 
in 
each 
MS 200748 

of

% 
Non-
nationals 
in 
each 
MS 
200749 

of 

Number 
criminal 
proceedings 
in 2007 

Serious  Crimes 
Recorded  by  the 
Police 
2006 
(excluding 
misdemeanours)50

Ireland 

4,312,526 

452,300 

10.5% 

440,93956 

103,178 

Italy 

59,131,287  2,938,922 

5.0% 

2,771,490 

Latvia 

2,281,305 

432,951 

19.0% 

Lithuania 

3,384,879 

39,687 

1.2% 

Luxembourg 

476,187 

198,213 

41.6% 

Malta 

407,810 

13,877 

3.4% 

62,328 

75,474 

25,913 

16,527 

Netherlands 

16,357,992  681,932 

4.2% 

1,276,00057 

1,218,447 

Poland 

38,125,479  54,883 

0.1% 

2,669,30058 

1,287,918 

Portugal 

10,599,095  434,887 

4.1% 

Romania 

21,565,119  26,069 

0.1% 

Slovakia 

5,393,637 

32,130 

0.6% 

Slovenia 

2,010,377 

53,555 

2.7% 

398,959 

232,658 

115,152 

90,354 

Spain 

44,474,631  4606,474 

10.4% 

936,78959 

2,267,114 

Sweden 

9,113,257 

491,996 

5.4% 

United 
Kingdom 

60,816,701  3,659,900 

6.0% 

1,224,958 

5,968,674 

148,800 
(Scotland)60 
1,732,506 
(England  and 
Wales)61 

55 http://portal.ksh.hu/pls/ksh/docs/eng/xstadat/xstadat_annual/tabl2_08_02ie.html 
56http://www.courts.ie/Courts.ie/library3.nsf/(WebFiles)/AABB16FA5813D4958025748900572B22/$FILE/Cou

57 

58 

rts%20Service%20Annual%20Report%202007%20-%20Pt%202%20.pdf 

http://statline.cbs.nl/StatWeb/publication/?VW=T&DM=SLEN&PA=37340eng&D1=0-4,10-

20&HD=090429-1117&LA=EN&HDR=T&STB=G1 

http://statline.cbs.nl/StatWeb/publication/?VW=T&DM=SLEN&PA=37340eng&D1=0-4,10-

20&HD=090429-1117&LA=EN&HDR=T&STB=G1 

59 http://www.ine.es/jaxi/tabla.do 
60 http://openscotland.gov.uk/Publications/2009/04/27103325/5 
61 http://www.justice.gov.uk/publications/criminalannual.htm 

EN 

69 

   EN 

 
 
 
 
 
 
 
 
 
 
 
                                                                                                                                                         
 
Table  2  (a)  Figures  on  Three  Countries  of  the  Number  of  Prosecuted,  Accused  or 
Convicted in 2007 and from that the Number who were Non-Nationals 

Accused or Convicted 

No of Accused or Convicted 
who were Non-Nationals. 

Austria62 

247,021 (Accused 2007) 

68,941 (28% of Accused) 

Czech Republic63 

78,545 (Prosecuted 2007) 

3,461 (4.4% of Prosecuted) 

67,186 (Accused 2007) 

2,999 (4.5% of Accused) 

75,728 (Convicted 2007) 

4,690 (6.2% of Convicted) 

France64 

654 229 (Convicted 2007) 

145,901(22.3% 
Convicted) 

of 

Table 3. Number of non-nationals in the prisons of each EU Member States and Number 
of those which are then Pre-Trial Detainees  
(First figure is number of foreign Prisoners and second figure is of foreign pre-trial detainees) 

COUNTRIES  200065  2001  200266  2003  200467  200568  200669  200770 

Austria 

2,077 

2,475 

Belgium 

3,501 

3,785 

Bulgaria 

141 

190 

217 

3,979 
& 
1,199 

3,860 
& 
1,670 

262 
& 
131 

3,768 
& 
1,207 

4,148 
& 
1,677 

233 
& 
91 

3,917 
& 
1,310 

4,234 
& 
1,753 

211 
& 
9 

62http://www.statistik.at/web_en/statistics/social_statistics/criminality/recorded_crimes_by_the_police/index.htm

l 

63 http://www.czso.cz/csu/cizinci.nsf/engt/1D003D9229/$File/c08t01.pdf 
64 http://www.insee.fr/fr/themes/tableau.asp?reg_id=0&ref_id=NATTEF05313 
65 

http://www.coe.int/t/e/legal_affairs/legal_co-operation/prisons_and_alternatives/statistics_space_i/pc-

66 

67 

68 

69 

70 

cp%20_2001_%202%20-%20e%20_SPACE%20I%20-%202000%20final%20version_.pdf 

http://www.coe.int/t/e/legal_affairs/legal_co-operation/prisons_and_alternatives/statistics_space_i/PC-

CP(2003)5E-%20Space-I.pdf 

http://www.coe.int/t/e/legal_affairs/legal_co-

operation/prisons_and_alternatives/statistics_space_i/Council%20of%20Europe_SPACE%20I%20-
%202004%20Nov05%20-%20E.pdf 

http://www.coe.int/t/e/legal_affairs/legal_co-

operation/prisons_and_alternatives/statistics_space_i/Council%20of%20Europe_SPACE%20I%20-
%202005%20-%20final%20version.pdf 

http://www.coe.int/t/e/legal_affairs/legal_co-operation/prisons_and_alternatives/statistics_space_i/pc-

cp%20(2007)%2009%20rev3%20-%20e%20(SPACE%202006)%2023-01-08.pdf 

http://www.coe.int/t/e/legal_affairs/legal_co-operation/prisons_and_alternatives/statistics_space_i/PC-

CP_2009_%2001Rapport%20SPACE%20I_2007_090324_final.pdf 

EN 

70 

   EN 

 
 
 
 
 
 
 
 
 
 
                                                 
COUNTRIES  200065  2001  200266  2003  200467  200568  200669  200770 

Cyprus 

148 

264 

Czech 
Republic 

2,620 

1,743 

Denmark 

557 

561 

621 

Estonia 

146 

1,660 

1,456 

Finland 

168 

293 

264 

241 
& 
57 

290 
& 
72 

357 
& 
39 

1,652 
& 
721 

1,378 
& 
510 

1,392 
& 
541 

754 
& 
363 

710 
& 
349 

654 
& 
… 

1,780 
& 
466 

1,740 
& 
483 

1,413 
& 
423 

286 
& 
114 

300 
& 
98 

301 
& 
86 

France 

10,553 

11,518  

12,307 11,820

& 
… 

Germany 

23,509  

22,474 22,095

Greece 

3,892 

3,800 

Hungary 

762 

836 

647 

Ireland 

… 

242 

& 
6,954 

3,990 
& 
… 

631 
& 
… 

Italy 

15,258 

16,937  

17,642 19,656

Latvia 

35 

42 

Lithuania 

122 

133 

& 
9,655 

26 
& 
… 

67 

40 

55 

11,436 
& 
… 

12,341 
& 
… 

21,263 
& 
6,483 

20,485 
& 
5,569 

5,902 
& 
1,417 

583 
& 
109 

395 
& 
135 

544 
& 
… 

474 
& 
214 

12,360 
& 
9,070 

16,643 
& 
12,067 

59 
& 
26 

78 

84 
& 
… 

80 

EN 

71 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
COUNTRIES  200065  2001  200266  2003  200467  200568  200669  200770 

Luxembourg 

233 

243 

409 

Malta 

99 

Netherlands 

1,026 

4,733 

5,466 

Poland 

1,409 

1,306 

1,026 

Portugal 

1,647 

& 
26 

546 
& 
255 

& 
14 

495 
& 
273 

91 
& 
35 

& 
32 

568 
& 
290 

136 
& 
72 

5,818 
& 
1,666 

5,339 
& 
1,306 

4,246 
& 
1,315 

750 
& 
408 

659 
& 
363 

629 
& 
324 

2,386 
& 
1,005 

2,552 
& 
1,071 

2,371 
& 
878 

Romania 

299 

374 

312 

Slovakia 

187 

179 

211 

Slovenia 

188 

171 

149 

274 
& 
46 

220 
& 
147 

144 
& 
69 

Spain 

8,470 

12,961  

14,119 18,436

Sweden 

1,211 

1,390 

1,460 

5,586 

8,941 

[just 

UK 
overall 
figures 
for  
UK](England 
& Wales 

& 
7,285 

1,475 
& 
… 

9,650 
& 
2,271 

260 
& 
31 

185 
& 
96 

151 
& 
69 

243 
& 
23 

165 
& 
102 

140 
& 
68 

20,018 
& 
7,792 

18,474 
& 
7,151 

1,533 
& 
… 

1,424 
& 
… 

10,879 
& 
1,532 

11,310 
& 
1,602 

EN 

72 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
COUNTRIES  200065  2001  200266  2003  200467  200568  200669  200770 

111 

… 

79 

16 

206 
& 
93 

90 

10 

71 
& 
15 

38 
& 
15 

133 
& 
64 

58 
& 
45 

Note: (…) = data not available 

Table 4  Percentage of non-nationals in the Prisons of each EU Member States and 
Percentage of those which are then Pre-Trial Detainees  
(First figure is % of foreign Prisoners and second figure is of foreign pre-trial detainees) 

COUNTRIES  200071  2001  200272 2003  200473 200574 200675  200776 

Austria 

30.1 

33.0 

Belgium 

40.4 

40.9 

Bulgaria 

1.5 

2.0 

2.0 

Cyprus 

42.9 

48.4 

Czech 
Republic 

11.7 

10.3 

45.4 
& 
30.1 

41.2 
& 
43.3 

2.1 
& 
50 

45.6 
& 
23.7 

8.7 
& 
43.6 

42.9 
& 
32.0 

41.6 
& 
40.4 

1.9 
& 
39.1 

48.4 
& 
24.8 

7.3 
& 
37.0 

44.1 
& 
33.4 

42.9 
& 
41.4 

1.9 
& 
4.3 

53.2 
& 
10.9 

7.4 
& 
38.9 

71 

72 

73 

74 

75 

76 

http://www.coe.int/t/e/legal_affairs/legal_co-operation/prisons_and_alternatives/statistics_space_i/pc-

cp%20_2001_%202%20-%20e%20_SPACE%20I%20-%202000%20final%20version_.pdf 

http://www.coe.int/t/e/legal_affairs/legal_co-operation/prisons_and_alternatives/statistics_space_i/PC-

CP(2003)5E-%20Space-I.pdf 

http://www.coe.int/t/e/legal_affairs/legal_co-

operation/prisons_and_alternatives/statistics_space_i/Council%20of%20Europe_SPACE%20I%20-
%202004%20Nov05%20-%20E.pdf 

http://www.coe.int/t/e/legal_affairs/legal_co-

operation/prisons_and_alternatives/statistics_space_i/Council%20of%20Europe_SPACE%20I%20-
%202005%20-%20final%20version.pdf 

http://www.coe.int/t/e/legal_affairs/legal_co-operation/prisons_and_alternatives/statistics_space_i/pc-

cp%20(2007)%2009%20rev3%20-%20e%20(SPACE%202006)%2023-01-08.pdf 

http://www.coe.int/t/e/legal_affairs/legal_co-operation/prisons_and_alternatives/statistics_space_i/PC-

CP_2009_%2001Rapport%20SPACE%20I_2007_090324_final.pdf 

EN 

73 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
COUNTRIES  200071  2001  200272 2003  200473 200574 200675  200776 

Denmark 

17.0 

16.3 

16.5 

Estonia 

3.1 

35.8 

31.9 

Finland 

6.2 

8.5 

7.7 

France 

21.6 

21.5 

21.9 

Germany 

29.9 

28.2 

Greece 

48.4 

45.9 

Hungary 

4.8 

Ireland 

… 

4.6 

8.0 

3.9 

Italy 

28.5 

30.1 

31.5 

Latvia 

0.4 

Lithuania 

1.4 

0.5 

1.2 

0.5 

0.7 

Luxembourg 

59.1 

63.9 

74.6 

18.2 
& 
48.1 

40.4 
& 
26.2 

7.5 
& 
39.9 

20.5 
& 
… 

28.0 
& 
21.5 

41.6 
& 
… 

3.8 
& 
… 

33.0 
& 
49.1 

0.4 
& 
… 

0.8 
& 
20.9 

71.4 
& 
55.2 

18.9 
& 
49.2 

40.4 
& 
27.8 

8.1 
& 
32.7 

19.8 
& 
… 

26.9 
& 
30.5 

58.4 
& 
24.0 

3.7 
& 
18.7 

12.6 
& 
34.2 

32.3 
& 
73.4 

0.9 
& 
44.1 

1.0 
& 
41.0 

75.2 
& 
51.1 

18.0 
& 
… 

40.9 
& 
29.9 

8.3 
& 
28.6 

19.4 
& 
… 

26.3 
& 
27.2 

3.7 
& 
… 

14.3 
& 
45.1 

36.5 
& 
72.5 

1.3 
& 
… 

1.0 
& 
32.5 

73.4 
& 
46.7 

Malta 

35.0 

30.5 

39.7 

EN 

74 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
COUNTRIES  200071  2001  200272 2003  200473 200574 200675  200776 

Netherlands 

7.4 

29.1 

27.2 

Poland 

2.2 

1.6 

1.3 

Portugal 

Romania 

0.6 

Slovakia 

2.6 

12.0 

0.7 

2.3 

0.8 

2.2 

Slovenia 

16.6 

15.3 

13.2 

Spain 

18.8 

25.4 

27.5 

Sweden 

21.3 

21.4 

19.9 

UK  (England 
& Wales 

8.5 

1.9 

… 

UK 
(Scotland) 

UK 
(Northern 
Ireland) 

Note:  (…) = data not available 

12.0 

1.3 

0.8 

1.2 

1.5 

& 
38.5 

32.9 
& 
28.6 

.09 
& 
54.4 

18.5 
& 
42.1 

0.7 
& 
16.8 

2.4 
& 
66.8 

12.7 
& 
47.9 

30.1 
& 
39.5 

20.9 
& 
… 

12.7 
& 
23.5 

1.0 
& 
21.1 

2.8 
& 
39.5 

& 
52.9 

32.7 
& 
24.5 

0.7 
& 
55.1 

20.2 
& 
42.0 

0.7 
& 
11.9 

2.1 
& 
51.9 

11.6 
& 
45.7 

31.2 
& 
38.9 

21.4 
& 
… 

14.0 
& 
14.1 

1.8 
& 
48.1 

3.9 
& 
77.6 

29.1 
& 
31.0 

0.7 
& 
51.5 

20.5 
& 
37.0 

0.8 
& 
9.5 

2.0 
& 
61.8 

10.5 
& 
48.6 

32.4 
& 
38.7 

21.0 
& 
… 

14.2 
& 
14.2 

2.8 
& 
45.1 

EN 

75 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Table 5: Estimated number of criminal proceedings involving non-nationals per year in 
Member States  

COUNTRIES  Population 

of each 
Member 
State 
200777 

Number of 
criminal 
proceedings  
in 2007 *79 

% of 
Non-
nationals 
in each 
MS 
200778 

Austria 

8,298,923 

10% 

165978 

Belgium 

10,584,534  8.8% 

211690 

Number of 
criminal 
proceedings 
involving a 
non-national 
80 

16598 

18628 

Bulgaria 

7,679,290 

0.3% 

37,97781 

114 

Cyprus 

778,684 

15.2% 

Czech 
Republic 

10,287,189  2.9% 

107,997 

statistics)

82 

78,54583 

Denmark 

5,447,084 

5.1% 

108941 

Estonia 

1,342,409 

17.6% 

26848 

Finland 

5,276,955 

2.3% 

105538 

(2006 

10799 

2278 

5556 

4725 

2427 

France 

63,392,140  5.8% 

1267842 

73534 

Germany 

82,314,906  8.8% 

255498 

5,806,781 
(2006 
figures)84 

Greece 

11,171,740  7.9% 

223434 

17651 

Hungary 

10,066,158  1.7% 

426,91485 

7257 

77http://epp.eurostat.ec.europa.eu/tgm/refreshTableAction.do?tab=table&plugin=1&pcode=tps00001&language=

en 

78http://epp.eurostat.ec.europa.eu/portal/page?_pageid=1996,45323734&_dad=portal&_schema=PORTAL&scre
en=welcomeref&open=/t_popula/t_pop/t_demo_pop&language=en&product=REF_TB_population&ro
ot=REF_TB_population&scrollto=0 

79 Figures with no footnotes were derived by finding two percent of the population as on average this was the 

amount of proceedings for the countries that we have figures for 

80 We multiplied the % of non-nationals in each country by the no of criminal proceedings in each country. 
81 http://www.nsi.bg/SocialActivities_e/Crime_e.htm 
82http://www.mof.gov.cy/mof/cystat/statistics.nsf/All/50F489DBBAA9E96DC22575080024ACA9?OpenDocum

ent&sub=3&e= 

83 http://www.czso.cz/csu/cizinci.nsf/engt/1D003D9229/$File/c08t01.pdf 
84Addition of figures for criminal proceedings at first instance, public prosecution and appellant instance stage. 

http://www.destatis.de/jetspeed/portal/cms/Sites/destatis/Internet/EN/Content/Statistics/Rechtspflege/G
erichtsverfahren/Tabellen/Content75/Gerichtsverfahren,templateId=renderPrint.psml 

EN 

76 

   EN 

 
                                                 
COUNTRIES  Population 

of each 
Member 
State 
200777 

% of 
Non-
nationals 
in each 
MS 
200778 

Number of 
criminal 
proceedings  
in 2007 *79 

Number of 
criminal 
proceedings 
involving a 
non-national 
80 

Ireland 

4,312,526 

10.5% 

86250 

8625 

Italy 

59,131,287  5.0% 

1182624 

59131 

Latvia 

2,281,305 

19.0% 

45626 

Lithuania 

3,384,879 

1.2% 

67696 

Luxembourg 

476,187 

41.6% 

9523 

Malta 

407,810 

3.4% 

8156 

8668 

812 

3961 

277 

Netherlands 

16,357,992  4.2% 

1,276,00086 

53592 

Poland 

38,125,479  0.1% 

2,669,30087 

Portugal 

10,599,095  4.1% 

211980 

Romania 

21,565,119  0.1% 

431302 

Slovakia 

5,393,637 

0.6% 

107872 

2669 

8691 

431 

647 

Slovenia 

2,010,377 

2.7% 

40206 

1085 

Spain 

44,474,631  10.4% 

936,78988 

97426 

Sweden 

9,113,257 

5.4% 

182264 

9842 

United 
Kingdom 

60,816,701  6.0% 

112878 

148,800 
(Scotland)89 
1,732,506 
(England  and 
Wales)90 

Total 

1,039,298 

85 http://portal.ksh.hu/pls/ksh/docs/eng/xstadat/xstadat_annual/tabl2_08_02ie.html 
86 

http://statline.cbs.nl/StatWeb/publication/?VW=T&DM=SLEN&PA=37340eng&D1=0-4,10-

87 

20&HD=090429-1117&LA=EN&HDR=T&STB=G1 

http://statline.cbs.nl/StatWeb/publication/?VW=T&DM=SLEN&PA=37340eng&D1=0-4,10-

20&HD=090429-1117&LA=EN&HDR=T&STB=G1 

88 http://www.ine.es/jaxi/tabla.do 
89 http://openscotland.gov.uk/Publications/2009/04/27103325/5 
90 http://www.justice.gov.uk/publications/criminalannual.htm 

EN 

77 

   EN 

 
 
 
 
                                                                                                                                                         
 
Table 6: Estimated costs of interpretation and translation in Member States  

COUNTRIES  Population 
each 

of 
Member 
State 
200791 

of 

Number 
criminal 
proceedings 
involving 
a 
non-national  

Costs 
of 
Interpretation 
(no  of  non-
nationals 
proceedings  X 
€200) 

Austria 

8,298,923 

16598 

€3,319,600 

Belgium 

10,584,534  18628 

€3,725,600 

Bulgaria 

7,679,290 

114 

€22,800 

Cyprus 

778,684 

10799 

€2,159,800 

Czech 
Republic 

10,287,189  2278 

€455,600 

Denmark 

5,447,084 

5556 

€1,111,200 

Estonia 

1,342,409 

4725 

€945,000 

Finland 

5,276,955 

2427 

€485,400 

France 

63,392,140  73534 

€14,706,800 

Germany 

82,314,906  255498 

€51,099,600 

Greece 

11,171,740  17651 

€3,530,200 

Hungary 

10,066,158  7257 

€1,451,400 

Ireland 

4,312,526 

8625 

€1,725,000 

of 

Costs 
Translation 
of  30  pages  
(  no  of  non-
nationals 
proceedings 
€255-
X 
€1500) 

€4,232,490-
€24,897,000 

€4,750,140-
€27,942,000 

€29,070-
€171,000 

€2,753,745-
€16,198,500 

€580,890-
€3,417,000 

€1,416,780-
€8,334,000 

€1,204,875-
€7,087,500 

€618,885-
€3,640,500 

€1,8751,170-
€11,0301,000 

€130,303,980-
€766,494,000 

€4,501,005-
€26,476,500 

€1,850,535-
€10,885,500 

€2,199,375-
€12,937,500 

91http://epp.eurostat.ec.europa.eu/tgm/refreshTableAction.do?tab=table&plugin=1&pcode=tps00001&language=

en 

EN 

78 

   EN 

 
                                                 
COUNTRIES  Population 
each 

of 
Member 
State 
200791 

of 

Number 
criminal 
proceedings 
involving 
a 
non-national  

of 
Costs 
Interpretation 
(no  of  non-
nationals 
proceedings  X 
€200) 

of 

Costs 
Translation 
of  30  pages  
(  no  of  non-
nationals 
proceedings 
X 
€255-
€1500) 

Italy 

59,131,287  59131 

€11,826,200 

Latvia 

2,281,305 

8668 

€1,733,600 

Lithuania 

3,384,879 

812 

€162,400 

Luxembourg 

476,187 

3961 

€792,200 

Malta 

407,810 

277 

€55,400 

Netherlands 

16,357,992  53592 

€10,718,400 

Poland 

38,125,479  2669 

€533,800 

Portugal 

10,599,095  8691 

€1,738,200 

Romania 

21,565,119  431 

€86,200 

Slovakia 

5,393,637 

647 

€129,400 

Slovenia 

2,010,377 

1085 

€217,000 

Spain 

44,474,631  97426 

€19,485,200 

Sweden 

9,113,257 

9842 

€1,968,400 

United 
Kingdom 

60,816,701  112878 

£37,500,000 

€15,078,045-
€88,696,500 

€2,210,340-
€13,002,000 

€207,060-
€1,218,000 

€1,010,055-
€5,941,500 

€70,635-
€415,500 

€13,665,980-
€80,388,000 

€680,595-
€4,003,500 

€2,216,205-
€13,036,500 

€109,905-
€646,500 

€164,985-
€970,500 

€276,675-
€1,627,500 

€24,843,630-
€146139000 

€2,509,710-
€14,763,000 

€28,783,890-
€169,317,000 
£24,896,602-

EN 

79 

   EN 

 
COUNTRIES  Population 
each 

of 
Member 
State 
200791 

of 

Number 
criminal 
proceedings 
involving 
a 
non-national  

of 
Costs 
Interpretation 
(no  of  non-
nationals 
proceedings  X 
€200) 

of 

Costs 
Translation 
of  30  pages  
(  no  of  non-
nationals 
proceedings 
X 
€255-
€1500) 

£146,450,604 

Notes to Table 6 

Many Member States already comply with the ECHR obligation to provide interpretation and 
translation to suspects. This obligation is by no means new, nor are the costs related to it. All 
Member States have some system in place to cover interpretation and translation fees in their 
criminal  justice  systems.  Those  member  States  that  comply  well  with  the  ECHR  obligation 
are unlikely to have to incur any expenses in addition to what they already spend on this as a 
result of the proposed Framework Decision (e.g. UK and IE). The proposed instrument may 
result  in  costs  for  Member  States  that  do  not  fulfil  the  requirements  of  the  ECHR  (and  are 
consequently in breach of it).  

In  order  to  arrive  at  some  costs,  we  took  the  figures  provided  by  the  UK  for  costs  of 
interpretation and number of cases. By dividing the total cost by the number of cases, we were 
able to get an average figure per case, which we then adjusted for other Member States. We 
used  a  statistical  breakdown  of  the  ECtHR  case  law  in  order  to  get  a  rough  estimate  of  the 
percentage of criminal cases that involve a foreign defendant. 

So what we have been able to produce is the following 

•  a rough estimate of the number of criminal cases per Member State per year, 

•  an estimate of number involving a foreign defendant. We estimate this to be about 10% of 

criminal cases on average. 

•  an estimate  of the possible range of  costs  of interpretation per Member  State (by taking 
the estimate of number of cases involving a foreign defendant and multiplying this by our 
estimated average cost of interpretation for each case (approximately an average of €200 
per case). 

What we are not able to do is to refine this for each Member State given that we do not have 
the data on the actual number of cases where interpretation/translation is required. However, 
where we have been able to find information (for example by using the Google search engine 
to find press articles), the figures obtained tend to be comparable to our own. 

Interpretation 

UK spends £37.5 million on interpretation.  

EN 

80 

   EN 

 
In  Annex  5  it  is  shown  that  there  1,881,306  criminal  proceedings  in  the  UK  in  2007.  On 
average  in  the  EU  10%  of  criminal  proceedings  involve  non-nationals.  Therefore  10%  of 
1,881,306 is 188,131. 

To see on average how much is spent on interpretation we divided £37.5million by 188,131 

Just under £200 was  spent on average on interpretation in each case in the UK in 2007 which 
would convert to €200 

Calculations 

1,881,306 

criminal proceedings 

1,881,306 

/  100 

18813.06 

X  10 

188131 

10% of cases 

37,500,000 

/  112,878 

£ 

199 

average spent per case 

€200 

average spent per case 

Translation 

From  Annex  3  we  can  see  the  varied  amounts  of  costs  for  translation  in  each  MS.  This 
depends on whether calculating it by word/character/page etc. 

We are going to base our translation costs on the amount it costs to translate a page. 

The amount of pages that would need to be translated can vary from a simple case and two 
pages  to  translate  to  a  very  detailed  document  which  may  need  up  to  80  pages  translated. 
Therefore we will use an average of a 30 page document that needs to be translated and see 
the cost of it.  

From the figures given in Annex 3 the price of translating a page varies from €8.50 to €50. 

Therefore if we multiply €8.50 by 30 pa ges we get a total cost of €255. 

EN 

81 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
And if we multiply €50 by 30 page s we get a total cost of €1500. 

Therefore the cost of translating 30 pages varies from €255 - € 1500 depending on the MS. 

Calculations 

30 

X 

8.50 

€255  per 30 pages @ €8.50 per page 

30 

X 

50 

€1500  per 30 pages @ €50 per page 

Total 

Based on the UK cost of interpretation in 2007 and the costs we have for translation of a page 
in various Member States we have calculated an average cost of interpretation and translation. 
Thus  if  we  were  to  add  the  cost  of  interpretation  (€380)  to  the  cost  of  translation  (€255  - 
€1500)  we  get  a  total  figure  of  €635-  €1880  dependi
could be also calculated by the amount per word/per character or per day. 

ng  on  the  MS.  The  cost  of  translation 

EN 

82 

   EN