REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the implementation of Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings
Date: 2018-12-18
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: European arrest warrant, application of EU law, criminal proceedings, fundamental rights, interpreting, right to justice, rights of the defence, translation

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 18.12.2018  COM(2018) 857 final  REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the implementation of Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings  
 
 
1.  INTRODUCTION 

1.1.  Background 

Directive 2010/64/EU on the right  to  interpretation and translation in  criminal  proceedings1 
(‘the Directive’) constitutes the first instrument adopted under Article 82(2) of the Treaty on 
the  Functioning  of  the  European  Union2 (TFEU).  Article  82(2)  provides  the  legal  basis  to 
adopt,  by  means  of  directives,  minimum  rules  on  ‘the  rights  of  individuals  in  criminal 
procedure.’ 

By providing common minimum standards for procedural rights in criminal proceedings, the 
Directive  contributes  to  the  general  objective  of  increasing  mutual  trust  by  improving  the 
application  of  the  mutual  recognition  principle,  the  cornerstone  of  the  EU  area  of  freedom, 
security  and  justice.  It  helps  to  strengthen  mutual  trust  by  providing  a  more  consistent 
implementation of some aspects of the right to a fair trial set out in Article 47 of the Charter 
of  Fundamental  Rights  of  the  EU 3 and  Article 6  of  the  European  Convention  on  Human 
Rights.  

The Directive is the first measure following the Roadmap for strengthening procedural rights 
of suspected or accused persons in criminal proceedings adopted in 2009 (measure A)4. After 
the adoption of the Directive, further work on procedural  rights  has  been carried out  at  EU 
level. To date, the EU has adopted five further directives on:  

1.  right to information about rights and charges and access to the case file5;  
2.  right  of  access  to  a  lawyer  and  communication  with  third  persons  while  being 

deprived of liberty6;  

3.  strengthening of certain aspects of the presumption of innocence and of the right to be 

present at the trial7;  

4.  procedural safeguards for children8; and 
5.  legal aid9. 

1 OJ L 280, 26.10.2010, p. 1. 
2 OJ C 326, 26.10.2012, p. 47. 
3 OJ C 326, 26.10.2012, p. 392. 
4  Resolution  of  the  Council  of  30 November  2009  on  a  Roadmap  for  strengthening  procedural  rights  of 
suspected or accused persons in criminal proceedings, OJ C 295, 4.12.2009, p. 1. 
5 Directive 2012/13/EU on the right to information in criminal proceedings, OJ L 142, 1.6.2012, p. 1. 
6 Directive  2013/48/EU  on  the  right  of  access  to  a  lawyer  in  criminal  proceedings  and  in  European  arrest 
warrant  proceedings,  and  on  the  right  to  have  a  third  party  informed  upon  deprivation  of  liberty  and  to 
communicate with third persons and with consular authorities while deprived of liberty, OJ L 294, 6.11.2013, p. 
1. 
7 Directive (EU) 2016/343 on the strengthening of certain aspects of the presumption of innocence and of the 
right to be present at the trial in criminal proceedings, OJ L 65, 11.3.2016, p. 1. 
8 Directive  (EU)  2016/800  on  procedural  safeguards  for  children  who  are  suspects  or  accused  persons  in 
criminal proceedings, OJ L 132, 21.5.2016, p. 1. 
9 Directive  (EU)  2016/1919  on  legal  aid  for  suspects  and  accused  persons  in  criminal  proceedings  and  for 
requested persons in European arrest warrant proceedings, OJ L 297, 4.11.2016, p. 1. 

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1.2.  Purpose and main elements of the Directive 

The Directive enables the practical application of the right to a fair trial which encompasses 
the  right  of  suspected  and  accused  persons  to  interpretation  and  translation  in  criminal 
proceedings10. 

The  Directive  provides  a  general  right  to  interpretation  and  translation  in  criminal 
proceedings, from the moment persons are made aware by the competent authorities that they 
are suspected or accused of having committed a criminal offence until the conclusion of the 
proceedings. 

Article 2 sets the right to interpretation in criminal proceedings, requiring Member States to 
provide,  without  delay,  an  interpreter  not  only  during  criminal  proceedings  and  European 
arrest  warrant  proceedings  but  also  for  communications  between  the  suspected  or  accused 
person and their legal counsel. 

Article 3 sets the right to translation during criminal proceedings and European arrest warrant 
proceedings, requiring Member States to provide within a reasonable period of time a written 
translation of documents that are essential for the exercise of the right of defence. 

1.3.  Scope of the report 

The  report  evaluates  the  application  of  the  Directive  in  accordance  with  Article 10  of  the 
Directive  which  provides  that  the  Commission  must  submit  a  report  to  the  European 
Parliament and to the Council, assessing the extent to which the Member States have taken 
the necessary measures in order to comply with the Directive. 

The  description  and  analysis  in  this  report  are  primarily  based  on  the  information  Member 
States provided to the Commission through the notification of national measures transposing 
the  Directive.  The  report  is  also  based  on  publicly  available  studies  carried  out  by  the 
European Union Agency for Fundamental Rights11 or by external stakeholders assessing the 
implementation of procedural rights directives under the Justice Programme action grants12. 

The  report  focuses  on  the  measures  Member  States  have  taken  so  far  to  implement  the 
Directive.  It  assesses  whether  Member  States  have  implemented  the  Directive  within  the 

the  EU: 

translation, 

10 The  CJEU  has  so  far  interpreted  Directive  2010/64/EU  on  three  occasions.  See  CJEU,  15 October  2015, 
Covaci, C-216/14; CJEU, 9 June 2016, Balogh, C-25/15; CJEU, 12 October 2017, Sleutjes, C-278/16. 
11 Study done by the European Union Agency for Fundamental Rights (FRA), Rights of suspected and accused 
persons  across 
interpretation  and  information,  November  2016.  Available  at 
http://fra.europa.eu/en/publication/2016/rights-suspected-and-accused-persons-across-eu-translation-
interpretation-and 
12 See the study done by Council of Bars and Law Societies of Europe (ECCB), TRAINAC — Assessment, good 
practices and recommendations on the right to interpretation and translation, the right to information and the 
at 
right  of  access 
http://europeanlawyersfoundation.eu/wp-content/uploads/2015/04/TRAINAC-study.pdf. See also "Inside Police 
Custody" and "Inside Police Custody 2", carried out by the Irish Council for Civil Liberties in 2014 and 2018. 
Available at: https://intersentia.be/nl/pdf/viewer/download/id/9781780681863_0/. 

criminal  proceedings,  published 

in  2016.  Available 

lawyer 

to  a 

in 

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given  timeframe,  and  whether  national  legislations  achieve  the  objectives  and  fulfil  the 
requirements of the Directive. 

2.  GENERAL ASSESSMENT 

Under  Article  9,  Member  States  had  to  transpose  the  Directive  into  national  law  by 
27 October 2013. At the date of expiry of the transposition period, 16 Member States had not 
communicated  the  necessary  measures  to  the  Commission:  Belgium,  Bulgaria,  Ireland, 
Greece,  Spain,  Italy,  Cyprus,  Lithuania,  Luxembourg,  Hungary,  Malta,  Austria,  Romania, 
Slovenia, Slovakia and Finland. As a result, the Commission decided on 29 November 2013 
to  launch  infringement  proceedings,  under  Article 258  TFEU,  against  those  16  Member 
States for non-communication or partial communication of transposing measures. 

The  Commission’s  main  objective  has  been  to  ensure  that  all  Member  States  transpose  the 
requirements of the Directive in their national law, so that the rights it contains are protected 
throughout  the  European  Union.  The  transposition  of  the  Directive  is  a  prerequisite  to 
properly assess the extent to which the Member States have taken the necessary measures to 
comply  with  the  Directive.  The  Commission  started  to  assess  the  compliance  of  national 
measures with the Directive as soon as they were communicated by Member States. Delays 
in  transposition 13  have  postponed  the  overall  assessment  process.  Some  infringement 
proceedings for non-communication or partial communication could be closed only in 2018, 
following legislative  amendments adopted by  Member States14.  In these circumstances, and 
given the complexity of the assessment of all the measures communicated by the 27 Member 
States bound by the Directive with particular regard to their different national legal systems, 
the Commission has not been in a position to submit this report earlier. 

Although the Directive’s impact is limited to setting minimum rules and consequently leaves 
the possibility for differences between national criminal procedural laws, it does impose clear 
obligations on Member States.  

The  assessment  has  raised  certain  issues  of  compliance  in  several  Member  States,  in 
particular for communication between suspected or accused persons and their legal counsel, 
the translation of essential documents and the costs of interpretation and translation. Unless 
remedied, such divergences may negatively affect the effectiveness of the rights provided for 
by this Directive. To ensure conformity with the Directive throughout the European Union, 
the  Commission  will  take  every  appropriate  measure,  including  where  necessary  initiating 
infringement  proceedings  pursuant  to  Article  258  of  the  Treaty  on  the  Functioning  of  the 
European Union. 

13 For example, Luxembourg only transposed the Directive in March 2017 and Lithuania notified in May 2017 
new measures to complete the transposition of the Directive. 
14 The cases concerning Luxembourg and Lithuania were closed in January 2018. 

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In accordance with Articles 1 and 2 of the Protocol (N°22) Denmark is not taking part in the 
adoption of the Directive and is not bound by it or subject to its application. Hence, Denmark 
is not considered in the following assessment. 

In accordance with Article 3 of the Protocol (N°21) on the position of the United Kingdom 
and Ireland in respect of the area of freedom, security and justice, the United Kingdom and 
Ireland  have  notified  that  they  wish  to  take  part  in  the  adoption  and  application  of  the 
Directive. 

3.  SPECIFIC POINTS OF ASSESSMENT 

3.1.  Subject matter and scope (Article 1) 

Article 1 of the Directive lays down the subject matter and the scope of the Directive as that 
of ensuring the right to translation and interpretation in criminal proceedings for suspected or 
accused persons who do not speak or understand the language of the proceedings. The main 
aim of the Directive is to enable the application of these rights in practice in order to ensure 
the  right  to  a  fair  trial.  The  right  to  interpretation  and  translation  also  applies  to  European 
arrest warrant proceedings. 

3.1.1.  Scope — Article 1(2) 

Article 1(2)  of  the  Directive  provides  that  the  application  of  the  right  to  interpretation  and 
translation  in  criminal  proceedings  and  proceedings  for  the  execution  of  a  European  arrest 
warrant  from  the  time  a  person  is  made  aware  by  the  competent  authorities  that  they  are 
suspected  or  accused  of  having  committed  a  criminal  offence  until  the  conclusion  of  the 
proceedings, that is, until the decision is final and irrevocable. 

In most Member States, the moment and duration of application of the right to interpretation 
and translation is ensured by a general provision indicating the point in time where the right 
applies  (e.g.  ‘at  any  time  during  the  criminal  procedure’,  ‘throughout  the  entire  criminal 
proceedings’, ‘in the criminal proceedings’, ‘during the performance of procedural actions’). 
The moment and means  of making the persons aware that they are suspected or accused of 
having  committed  a  criminal  offence  are  however  in  most  Member  States  not  explicitly 
mentioned in the transposing measures, but could be inferred from a detailed analysis of the 
different stages of criminal proceedings in the respective legal orders. 

3.1.2.  Minor offences — Article 1(3) 

Article 1(3) of the Directive ensures that when the national law provides for the imposition of 
a sanction regarding minor offences by an authority other than a court having jurisdiction in 
criminal matters, and the imposition of such a sanction may be appealed to such a court, the 
right to interpretation and translation is granted for the appeal proceedings. 

This provision is relevant for most Member States (16 Member States) where administrative 
authorities, the police or courts having jurisdiction in non-criminal matters are responsible for 

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dealing with minor offences. For the remaining Member States, the provision does not apply 
because  the  imposition  of  sanctions  on  minor  offences  is  always  realised  by  courts  having 
jurisdiction in criminal matters. 

3.1.3.  Article 1(4) 

Article 1(4) provides that the Directive does not affect national law concerning the presence 
of  legal  counsel  at  any  stage  of  the  criminal  proceedings,  nor  does  it  affect  national  law 
concerning  the  right  of  access  of  a  suspected  or  accused  person  to  documents  in  criminal 
proceedings. 

Only eight Member States have explicitly transposed this provision, whereas in the remaining 
Member  States  compliance  can  be  concluded  based  on  the  analysis  of  national  legislation 
already in place. 

3.2.  Right to interpretation (Article 2) 

Article 2  of  the  Directive  provides  the  right  to  interpretation  in  criminal  proceedings.  It 
requires Member States to provide, without delay, an interpreter during criminal proceedings 
and European arrest  warrant  proceedings, including communications between the suspected 
or accused person and their legal counsel. Member States must also put a mechanism in place 
to  assess  whether  the  suspected  or  accused  person  understands  the  language  of  the 
proceedings. Also the possibility for challenging both the refusal of appointing an interpreter 
and the quality of the interpretation should be clearly laid down. Member States should also 
ensure that the interpretation provided is of sufficient quality to safeguard the fairness of the 
proceedings. 

3.2.1.  Interpretation before investigative and judicial authorities — Article 2(1) 

Article 2(1)  obliges  Member  States  to  provide  interpretation  without  delay  to  suspected  or 
accused  persons  who  do  not  speak  or  understand  the  language  of  the  criminal  proceedings 
before  investigative  and  judicial  authorities,  including  during  police  questioning,  all  courts 
hearing and any necessary interim hearings. 

interpretation  at  all  stages  of  criminal  proceedings, 
Most  Member  States  ensure 
encompassing both pre-trial and court stages through a general provision in their national law. 
Some  Member  States  have  introduced  distinct  provisions  for  each  stage.  However,  on  the 
requirement  that  interpretation  must  be  granted  to  suspected  and  accused  persons  ‘without 
delay’, only 11 Member States explicitly set it out, affecting compliance with the Directive. 

3.2.2.  Interpretation for communication with legal counsel — Article 2(2) 

Article 2(2) provides the right to receive interpretation services for communication between 
suspected  or  accused  persons  and  their  legal  counsel  in  direct  connection  with  any 
questioning  or  hearing  during  the  proceedings  or  with  the  lodging  of  an  appeal  or  other 
procedural applications. 

5 

 
 
Most Member States have explicitly introduced a provision into national law on the right to 
receive interpretation to communicate with legal counsel. However, in some Member States, 
this right is only referred to in legal practice, commentaries of national acts or case-law and 
provisions  ensuring  the  general  right  to  interpretation,  affecting  compliance  with  the 
Directive. In some other Member States, contrary to the Directive, this right is conditional to 
a specific request by the suspected or accused person, or alternatively by their legal counsel. 
In one Member State, criminal authorities first appoint the legal counsel as an interpreter if 
they know the language of the suspected or accused person, and only alternatively provide a 
qualified interpreter. 

Most  Member  States  have  indicated  which  procedural  acts  are  covered  by  the  right  to 
interpretation when communicating with legal counsel. 

3.2.3.  Assistance for persons with hearing or speech impediments — Article 2(3) 

Article 2(3)  describes  the  right  to  interpretation  as  including  appropriate  assistance  for 
persons with hearing or speech impediments. 

Most  Member  States  have  limited  the  personal  scope  of  this  provision  by  referring  only  to 
‘deaf or mute’, ‘deaf and hearing impaired’ or ‘deafblind’ persons. Such terminology appears 
too restrictive to encompass all hearing and speech impediments. 

On the ‘appropriate assistance’ granted to this category of persons, 10 Member States make 
explicit reference to the services of a sign language interpreter, whereas seven Member States 
simply  mention  interpretation  services  in  general.  In  10  Member  States,  communication  in 
writing  is  favoured  in  order  to  cover  appropriate  assistance.  In  a  few  Member  States, 
appropriate  assistance  can  be  provided  by  persons  familiar  to  the  suspected  or  accused 
persons. 

3.2.4.  Evaluation of the need for assistance — Article 2(4) 

Article 2(4) provides that Member States must set up a procedure or mechanism to ascertain 
whether  suspected  or  accused  persons  speak  and  understand  the  language  of  the  criminal 
proceedings and whether they need the assistance of an interpreter. 

Most  Member  States  lay  down  the  obligation  to  assess  the  need  for  interpretation  at  every 
stage of the proceedings, but without setting up a specific mechanism for that purpose. Only 
two Member States have set up a specific mechanism. 

3.2.5.  Right to challenge and complain — Article 2(5) 

Article 2(5)  requires  Member  States  to  ensure  that  suspected  or  accused  persons  have  both 
the  right  to  challenge  a  decision  finding  that  there  is  no  need  for  interpretation  and  the 
possibility to complain that the quality of the interpretation is not sufficient to safeguard the 
fairness of the proceedings. 

On the right to challenge a decision finding that there is no need for interpretation, only 10 
Member  States  have  introduced  procedures  in  their  legislation  addressing  this  review 

6 

 
 
procedure.  The  remaining  Member  States  have  relied  on  existing  general  procedures  for 
appealing against decisions of investigating and court authorities and submitting complaints 
or objections during the course of the criminal proceedings. 

On the possibility to complain about the quality of interpretation, 15 Member States referred 
to  such  a  complaint  procedure.  For  the  remaining  Member  States,  recourse  was  made  to 
general procedures of submitting complaints and objections or even appeals due to violation 
of  the  procedural  rights  of  defence.  The  possibility  to  replace  an  interpreter  on  grounds  of 
insufficient quality of interpretation services is provided in most Member States. 

3.2.6.  Communication technology — Article 2(6) 

Article 2(6) allows Member States where appropriate to use communication technology such 
as videoconferencing, telephone or the internet, unless the physical presence of the interpreter 
is required in order to safeguard the fairness of the proceedings. 

Half of the Member States chose to adopt this possibility. Among those, 12 Member States 
have  referred  to  the  limitation  under  Article 2(6)  of  the  Directive.  Two  Member  States 
mention that the use of communication technology should not hinder the rights of defence of 
the suspected or accused person. 

3.2.7.  Interpretation in European arrest warrant proceedings — Article 2(7) 

Article 2(7) requires that Member States ensure interpretation is provided also in proceedings 
for the execution of a European arrest warrant. Almost all Member States, with the exception 
of one, have correctly transposed this provision.  

3.2.8.  Quality of interpretation — Article 2(8) 

Article 2(8) requires interpretation to be of a quality sufficient to safeguard the fairness of the 
proceedings, in particular by ensuring that suspected or accused persons have knowledge of 
the  case  against  them  and  are  able  to  exercise  their  right  of  defence.  Almost  all  Member 
States  have  transposed  this  provision  although  the  majority  of  Member  States  do  not 
explicitly refer to the quality of interpretation. Among those, 16 Member States require that 
interpreters participating in the proceedings are registered or sworn interpreters or have been 
included in lists made available to the criminal authorities following compliance with a set of 
quality criteria. 

3.3.  Right to translation of essential documents (Article 3) 

Article 3 of the Directive establishes the right to translation during criminal proceedings and 
European arrest warrant proceedings, requiring Member States to provide within a reasonable 
period of time a written translation of documents that are essential for the exercise of the right 
of  defence.  This  right  includes  the  possibility  to  challenge  both  the  refusal  of  granting 
translation and the quality of the translation. As an exception, an oral translation and a waiver 
of  the  right  to  translation  are  allowed  under  strict  conditions.  Member  States  should  also 
ensure the quality of translation services. 

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3.3.1.  Translation of essential documents — Article 3(1) 

Article 3(1) provides that suspected or accused persons who do not understand the language 
of  the  criminal  proceedings  should,  within  a  reasonable  period  of  time,  be  provided  with  a 
written translation of all documents that are essential to ensure that they are able to exercise 
their right of defence and to safeguard the fairness of the proceedings15. 

Most  Member  States,  with  the  exception  of  one  Member  State,  provide  for  the  written 
translation  of  essential  documents.  The  majority  of  Member  States  either  explicitly  require 
that translations are provided ‘within a reasonable period of time’, or use a similar language 
such as ‘promptly’, ‘as soon as possible’ or ‘as soon as practicable’. In eight Member States, 
the national legislation does not state that translation of essential documents will be provided 
within a reasonable period of time, affecting compliance with the Directive. 

3.3.2.  Definition of essential documents — Article 3(2) 

Article 3(2) provides that essential documents must include any decision depriving a person 
of their liberty, any charge or indictment and any judgment. 

Most Member States have listed the documents that must be considered essential under this 
provision,  although  without  necessarily  using  the  term  ‘essential  documents’.  The  list  of 
documents  to  be  translated  is  in  most  cases  indicative  and  allows  for  the  translation  of 
additional documents other than those for which it is compulsory. 

In a few Member States, compliance is not ensured as the list of documents to be translated 
does not refer to all documents listed in the Directive (e.g. only parts of the indictment are to 
be translated, or not all documents on measures of deprivation of liberty are translated). 

3.3.3.  Decision on the essential character of a document — Article 3(3) 

Article 3(3)  provides  that  the  competent  authorities  must  decide  on  a  case-by-case  basis 
whether any other document is essential and that the suspected, the accused persons or their 
legal counsel may submit a reasoned request to that effect. 

Most  Member  States  allow  requesting  the  translation  of  additional  documents  essential  for 
the  suspected  or  accused  person.  However,  six  Member  States  do  not  allow  suspected  or 
accused persons or their legal counsel to submit a reasoned request for the translation of an 
additional  document.  About  half  of  Member  States  refer  to  some  general  criteria  for 
determining  the  essential  character  of  documents  (e.g.  when  they  are  necessary  for  the 
exercise of the right of defence or when this is in the interests of justice in general).  

15 In  case  C-278/16,  Sleutjes,  the  Court  has  judged  that  ‘an  order  provided  for  in  national  law  for  imposing 
sanctions  in  relation  to  minor  offences  and  delivered  by  a  judge  following  a  simplified  unilateral  procedure, 
constitutes a ‘document which is essential’, within the meaning of Article 3(1) of that directive’(point 34), as ‘it 
represents both an indictment and a judgment within the meaning of Article 3(2) of Directive 2010/64’ (point 
31). 

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3.3.4.  No requirement to translate irrelevant passages of essential documents — 

Article 3(4) 

Article 3(4)  provides  that  there  must  be  no  requirement  to  translate  passages  of  essential 
documents that are not relevant for the purposes of enabling suspected or accused persons to 
have knowledge of the case against them. 

Most  Member  States  have  made  use  of  this  optional  provision.  In  national  legislation,  the 
reasons justifying not translating passages vary, from not being relevant for the purposes of 
enabling  suspected  or  accused  persons  to  have  knowledge  of  the  case  against  them  to  not 
being relevant for the exercise of the right to defence. 

A  few  Member  States  go  beyond  this  minimum  standard  by  providing  that  essential 
documents must always be translated in full and not only the relevant passages. 

3.3.5.  Right to challenge and complain — Article 3(5) 

Article 3(5)  requires  Member  States  to  ensure  that  suspected  or  accused  persons  have  the 
right to challenge a decision finding that there is no need for the translation of documents or 
passages and the possibility to complain that the quality of the translation is not sufficient to 
safeguard the fairness of the proceedings. 

On the right to challenge a decision finding that there is no need for translation of documents, 
only  eight  Member  States  (as  for  Article 2(5))  have  introduced  specific  procedures  in  their 
legislation  addressing  this  review  procedure.  The  remaining  Member  States  have  relied  on 
existing  general  procedures  for  appealing  against  decisions  of  investigating  and  court 
authorities  and  submitting  complaints  or  objections  throughout  the  course  of  the  criminal 
proceedings. 

On  the  possibility  to  complain  about  the  quality  of  translation,  less  than  half  of  Member 
States  made  explicit  reference  to  a  specific  complaint  procedure.  The  remaining  Member 
States refer to  general procedures for submitting complaints and objections or even appeals 
based on the violation of the procedural rights of defence. 

While the Directive did not provide for this, six Member States have gone further and provide 
the  possibility  of  replacing  the  translator  on  grounds  that  the translations  produced  were  of 
insufficient quality. 

3.3.6.  Translation of European arrest warrant — Article 3(6) 

Article 3(6)  requires  that  a  translation  of  the  European  arrest  warrant  is  provided  in  the 
context of these proceedings. 

Almost  all  Member  States,  with  the  exception  of  four,  have  correctly  transposed  this 
provision. Among those Member States, most explicitly provide for the right to a translation 
of the European arrest warrant. 

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3.3.7.  Oral translation or oral summary of essential documents — Article 3(7) 

Article 3(7)  provides  an  exception  where  an  oral  translation  or  oral  summary  of  essential 
documents  may  be  provided  instead  of  a  written  translation  on  the  condition  that  the  oral 
translation or oral summary does not prejudice the fairness of the proceedings. 

Almost all Member States have chosen to include this exception in their national law. Only 
two  Member  States  where  translation  of  essential  documents  is  always  provided  have  not 
transposed this exception . 

Among  the  Member  States  that  have  transposed  this  option,  six  specify  that  an  oral 
translation or oral summary will be provided where this does not prejudice the fairness of the 
proceedings.  Some  other  Member  States  do  not  mention  that  oral  translations  are  an 
exception  to  written  translations  and  it  is  sometimes  unclear  in  practice  whether  this  is  the 
case, as it seems that oral translations may be the rule. 

3.3.8.  Waiver of the right to translation — Article 3(8) 

Article  3(8)  allows  for  a  waiver  of  the  right  to  translation  of  documents,  provided  that 
suspected and accused persons have received prior legal  advice  or have  otherwise obtained 
full  knowledge  of  the  consequences  of  such  a  waiver,  and  provided  that  the  waiver  was 
unequivocal and given voluntarily. 

Most Member States have transposed this option. Of those, all have included the requirement 
that the suspected or accused person must have obtained full knowledge of the consequences 
of  such  waiver,  either  by  employing  a  similar  vocabulary  or  by  entrusting  the  information 
obligation  to  the  criminal  authorities.  However,  very  few  Member  States  have  explicitly 
mentioned that the waiver must be unequivocal and given voluntarily. 

Ten  Member  States  go  beyond  the  minimum  set  by  this  provision  and  do  not  provide  the 
possibility to waive the right to translation of essential documents in criminal proceedings. 

3.3.9.  Quality of translation — Article 3(9) 

Article 3(9)  requires  that  translations  are  of  a  quality  sufficient  to  safeguard  the  fairness  of 
the proceedings, in particular by ensuring that suspected or accused persons have knowledge 
of the case against them and are able to exercise their right of defence. 

Most  Member  States,  although  they  do  not  explicitly  refer  to  the  quality  of  translation, 
provide for sufficient quality of translation either by requiring that translators participating in 
the  proceedings  are  registered  or  sworn  translators  or  have  been  included  in  relevant  lists 
made available to the criminal authorities following compliance with a set of quality criteria. 
Only two Member States have not transposed this provision. 

3.4.  Costs of interpretation and translation (Article 4) 

Article 4 requires Member States to bear the costs of interpretation and translation in criminal 
proceedings irrespective of the outcome of the proceedings. 

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Almost  all  Member  States,  except  three,  have  transposed  correctly  this  obligation.  In  most 
Member  States,  the  requirement  to  cover  the  costs  of  interpretation  and  translation 
‘irrespective  of  the  outcome  of  the  proceedings’  has  been  implied  from  other  national 
provisions ensuring that the right to interpretation and translation applies to the pre-trial and 
trial phase and that the related costs are not borne by the suspected or accused person. Some 
Member States provide that the costs of interpretation and translation in criminal proceedings 
are borne by the State. Some other Member States provide that the costs are borne by specific 
authorities (e.g. pre-trial authorities at the pre-trial stage and courts at the court stage). 

3.5.  Quality of the interpretation and translation (Article 5) 

Article 5 lays down the obligation for Member States to take measures to ensure the quality 
of interpretation and translation. In addition, Member States must endeavour to keep registers 
with  the  interpreters  and  translators  and  make  them  available  to  legal  counsel  and  relevant 
authorities. 

3.5.1.  Concrete measures to ensure quality — Article 5(1) 

Article 5(1)  provides  that  Member  States  must  take  concrete  measures  to  ensure  that  the 
interpretation  and  translation  provided  meets  the  quality  required  under  Article 2(8)  and 
Article 3(9) of the Directive. 

As  already  mentioned  above,  the  majority  of  Member  States  have  introduced  measures  to 
ensure the quality of interpretation and translation mostly through provisions regulating the 
profession of interpreters and translators and through specific qualification requirements. 

Some  Member  States  have  taken  specific  measures  going  beyond  the  provisions  of  the 
Directive  to  ensure  sufficient  quality  of  interpretation  and  translation,  by  regulating  the 
profession  of  interpreters  and  translators  or  by  referring  to  principles  of  conduct  or  ethical 
requirements of interpreters and translators. 

3.5.2.  Registers of translators and interpreters — Article 5(2) 

Article 5(2) requires that Member States must endeavour to establish a register or registers of 
independent translators and interpreters, who are appropriately qualified. 

Although this  Article does not  require Member  States to  establish a  register, most Member 
States have a register or registers for interpreters and translators and only a few have not yet 
taken any steps in  that direction. Six Member States provide that, in  exceptional  situations, 
which  are  mostly  linked  to  the  unavailability  of  an  interpreter/translator,  the  lack  of  an 
interpreter/translator for a specific language or disproportionate costs, interpreters/translators 
who  are  not  included  in  official  registers  or  lists  can  be  summoned  to  participate  in  the 
proceedings. 

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3.5.3.  Confidentiality — Article 5(3) 

Article 5(3) provides that Member States must ensure that interpreters and translators respect 
confidentiality in carrying out their role. 

Most  Member  States  provide  for  a  specific  confidentiality  requirement  for  interpreters  and 
translators applicable to the criminal proceedings, whereas a few Member States have a more 
general obligation of confidentiality. Two Member States have not transposed this obligation 
since  they  have  not  placed  a  confidentiality  obligation  upon  interpreters  and  translators, 
contrary to the Directive. 

3.6.  Training (Article 6) 

Article 6  provides  that  Member  States  must  request  those  responsible  for  training  judges, 
prosecutors and judicial staff involved in criminal proceedings to pay special attention to the 
particularities of communicating with the assistance of an interpreter so as to ensure efficient 
and effective communication. 

Overall, this provision has not been explicitly transposed by the majority of Member States. 
However,  their  national  systems  generally  include  soft-law  measures  ensuring  training 
programmes for judicial staff. In several Member States, training for judges, prosecutors and 
judicial  staff  include  specific  elements  on  the  particularities  of  communicating  with  the 
assistance of an interpreter. 

3.7.  Record-keeping (Article 7) 

Article 7 of the Directive lays down a record-keeping obligation for Member States when an 
interpreter  is  present  during  questioning  and  hearings,  when  an  oral  translation  or  oral 
summary  of  essential  documents  has  been  provided  and  when  a  waiver  of  the  right  to 
translation has been used by the suspected or accused person. 

The  obligation  to  keep  a  record  has  been  accurately  transposed  in  most  Member  States.  In 
those Member States, the obligation to keep a record of the assistance of an interpreter during 
the  questioning  or  hearings  by  an  investigative  or  judicial  authority  and  of  the  use  of  oral 
translation or oral summary of essential documents is set.  

The obligation to keep record of the use of a waiver to the right to translation is also provided 
for  in  most  cases.  For  seven  Member  States,  the  record-keeping  obligation  can  be  inferred 
from  general  provisions  on  the  duty  to  keep  a  detailed  record  or  minutes  of  all  actions  in 
relation  to  all  stages  of  criminal  proceedings.  One  Member  State  does  not  provide  for  the 
specific obligation to record the presence of an interpreter or the fact that oral translation has 
been provided. 

On the competence to keep records, in the majority of the Member States, the investigative 
authorities  are  responsible  for  keeping  them  in  the  pre-trial  phase,  while  in  the  court 
proceedings, it is a duty of the court - the court registrar usually carries out this role. 

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4.  CONCLUSIONS 

The Directive was introduced to enable the application of a specific fair trial right, namely the 
right of suspected or accused persons to translation and interpretation in criminal proceedings 
and European arrest warrant proceedings.  

The Directive has a significant impact on the protection of suspected or accused persons in 
Member States by providing a more consistent implementation of the rights and guarantees 
set  out  in  Articles  47  and  48  of  the  Charter  of  Fundamental  Rights  and  Article 6  of  the 
European  Convention  on  Human  Rights  through  the  establishment  common  European 
minimum standards. In this way, the Directive contributes to improving mutual trust among 
Member States as foreseen by the Roadmap for strengthening procedural rights of suspected 
or accused persons in criminal proceedings.  

Overall,  the  Directive  has  provided  EU  added  value  by  raising  the  level  of  protection  of 
citizens involved in criminal proceedings, especially in some Member States where the right 
to translation and interpretation did not exist beforehand. 

The  extent  of  the  Directive’s  impact  on  Member  States  varies  according  to  the  national 
criminal justice systems in place. The evaluation highlights that there are still difficulties on 
key  provisions  of  the  Directive  in  some  Member  States.  This  is  particularly  the  case  for 
communication between suspected or accused persons and their legal counsel, the translation 
of essential documents and the costs of interpretation and translation. 

The evaluation also shows that there is currently no need to revise the Directive but that its 
application  can  be  further  improved  in  practice.  The  Commission  will  continue  to  assess 
Member  States'  compliance  with  the  Directive  and  will  take  every  appropriate  measure  to 
ensure conformity with its provisions throughout the European Union.  

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