CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 28 août 2018

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SLOVENIA   (Application no. 59868/08)                 JUDGMENT     STRASBOURG   28 August 2018     FINAL   28/11/2018   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Vizgirda v. Slovenia, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Paulo Pinto de Albuquerque, President,   András Sajó,   Nona Tsotsoria,   Egidijus Kūris,   Iulia Motoc,   Gabriele Kucsko-Stadlmayer,   Marko Bošnjak, judges, and Marialena Tsirli, Section Registrar, Having deliberated in private on 6 September 2016, 31 January 2017, 16   May 2017 and 12 June 2018, Delivers the following judgment, which was adopted on the latter date: PROCEDURE 1.     The case originated in an application (no. 59868/08) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Mr Danas Vizgirda (“the applicant”), on 2 December 2008. 2.     The applicant was represented by Mr R. Završek, a lawyer practising in Ljubljana. The Slovenian Government (“the Government”) were represented by their Agent, Ms T. Mihelič Žitko, State Attorney. 3.     The applicant alleged, in particular, that his right to a fair trial under Article 6 of the Convention had been violated because he had not understood the language of the proceedings or the interpreting provided to him. 4.     On 16 June 2014 notice of the application was given to the Government. The applicant and the Government each submitted observations on its admissibility and merits. In addition, third-party submissions were received from Fair Trials International, which had been granted leave by the President to submit written comments (Article   36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court). 5.     The Government of the Republic of Lithuania, which had been notified by the Registrar of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court), did not indicate that they intended to do so. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicant was born in Lithuania in 1980 and lives in Ljubljana, Slovenia. 7 .     The applicant left Lithuania for Slovenia on 2 March 2002. 8.     On 13 March 2002 at 10.43 a.m. the applicant was arrested on suspicion of being involved in a robbery at the Radovljica branch of Gorenjska Bank. 9 .     The robbery had taken place at 9.30 a.m. on the same day. It had involved four men, while three others had assisted in its organisation. The four robbers wore masks. One of them carried a handgun and waited at the entrance, holding three clients at gunpoint. The others jumped over the counter and overpowered two bank employees while one of the robbers emptied the tills. After taking the money, the robbers fled by car towards the railway station. Informed of the bank robbery, the police searched the area. They discovered an abandoned car in nearby woods and soon after saw four men, including the applicant, running away. One of the men, later recognised as A.V., was seen carrying a bag, which he dropped when the police officers approached. The bag was found to contain some of the money stolen from the bank, a handgun and two masks. One of the masks had biological traces belonging to the applicant and another man (E.B.). 10.     All four men were arrested and were later identified as the applicant, A.V., M.K. and E.B. They were all Lithuanian nationals. 11 .     At 2 p.m. on the same day, 13 March 2002, the applicant was taken into police custody. It appears from the decision authorising that measure that the applicant, at the time “an unidentified person”, was immediately informed, in Russian, of the reasons for his arrest, and his right to remain silent, to request a lawyer and to have family members informed of his arrest. It can also be seen from this decision that a registered interpreter, A.G., interpreted for him from and into Russian and that the applicant did not request a lawyer. The decision was notified to the applicant at 5.20 p.m. He refused to sign a document acknowledging receipt of that decision, without providing any reasons for his refusal. 12.     On the same day three other Lithuanian nationals, L.K., N.U. and G.V., were arrested on suspicion of aiding and abetting the robbery. 13 .     On 15 March 2002 the applicant and six other suspects were questioned by the investigating judge of Kranj District Court. The judge informed the applicant of the charges against him, his right not to incriminate himself and his right to remain silent, and also his right to be assisted by a lawyer of his own choosing. As the applicant did not appoint a lawyer, the court assigned D.V. as counsel. During the proceedings, interpreting into Russian and from Russian into Slovenian was provided by A.G. According to the record of the questioning, when asked whether he understood his rights and agreed to the appointment of counsel, the applicant started to cry. The excerpt containing the applicant’s statement reads as follows: “I say that I have a young child. This child will have nothing to eat because our situation is very difficult. I have always worked; I have never done anything like this. I came to Slovenia because I wanted a job. I want to see my child. When asked when I came to Slovenia, I say that I do not remember. When asked if he can describe the robbery, the accused is silent and does not answer. When asked whether I am ready to give my personal data, I state that I was born in Lithuania and that my name is Danas. I say that I will not provide my family name because I am ashamed. When asked, why I am ashamed, I say that I am scared. I am scared that I will never see my child again. What have I done? When asked what he has done to make him scared he will not to see his child again, the accused does not answer, instead he starts crying more. When asked by the public prosecutor whether I would answer any more questions, I say no. When asked whether I would answer questions from my counsel, I nod and say yes. When asked how old I am and whether I have children, I answer that I am 21 and have one child, who means the whole world to me. When asked what circumstances I live in, I say that it is very difficult in Lithuania. The circumstances are difficult. I have no job and no money. When asked how long I have been in Slovenia, I say that I do not know exactly. I think that it has been about a week and a half. When asked who he arrived in Slovenia with, the accused responds by crying. There are no other questions for the accused. When asked whether anyone should be informed about the detention, I say that I do not have any relatives, and I do not know where my wife and child are currently. The defence is hereby concluded.” 14 .     Another suspect, A.V., described the robbery and the events leading up to it when questioned by the investigating judge. He explained that he and the applicant had travelled to Slovenia together. They had met L.K., who had approached them in a fast-food restaurant when he had heard them speaking Russian. They had gone with him to Bled and met M.K., E.B., N.U. and G.V. a few days before the robbery. After running out of money, they had decided to rob the bank in question. 15 .     During the questioning of the applicant by the investigating judge, the applicant’s counsel set out reasons for opposing the continuation of the applicant’s detention. The applicant stated on record that he agreed with what had been said by his counsel. 16.     Following the questioning, the investigating judge ordered the detention of all seven suspects. The decision was translated into Russian and notified to the applicant on 18 March 2002. His counsel appealed against that decision, and also against the subsequent prolongations of the applicant’s detention, but was unsuccessful. 17 .     On the day of the above-mentioned questioning, 15 March 2002, the investigating judge gave permission for the interpreter A.G. to visit the applicant and some of his co-accused in order to assist them in their consultations with their counsel. 18.     A decision opening a judicial investigation against the seven suspects was issued on 26 March 2002 but was quashed on appeal by a panel of three judges. The judges found that although the details of the allegations against the suspects had been provided in the detention orders, they should also have been fully included in the decision to open an investigation. 19.     The questioning of witnesses took place on 2, 3 and 4 April 2002. The applicant and the other six suspects were informed in Russian about their right to attend the questioning. The applicant did not attend those sessions, but his counsel attended them all. The transcripts of the witness statements were translated into Russian and given to the applicant on 19   April 2002. 20 .     On 8 April 2002 a new decision opening a judicial investigation against the seven accused was issued. It was later challenged unsuccessfully on appeal. The decision was translated into Russian and notified to the applicant on 10 April 2002. On the same day a remand hearing was held at which the applicant, with the assistance of the interpreter A.G., stated that he could not leave the country as he had no passport, that he wanted to wait until the proceedings were over and that he agreed with what had been said by his counsel at the hearing. 21 .     On 11 April 2002 A.G. informed the Kranj District Court that all the defendants had requested that the transcripts of the witness statements be translated into Russian. 22 .     On 12 April 2002 the investigating judge decided that the statements given by the suspects to the police should be excluded from the case file as the court could not rely on them. The decision was translated into Russian and notified to the applicant on 16 April 2002. 23.     On 17 April 2002 an identification parade was organised and one witness identified the applicant as a person who had visited the bank two days before the robbery. 24 .     On 28 May 2002 the district prosecutor lodged an indictment, charging the applicant, A.V., M.K. and E.B. with robbery, one count of theft of a motor vehicle and two counts of attempted theft of a motor vehicle. L.K., N.U. and G.V. were charged with aiding and abetting the robbery. The indictment was translated into Russian and challenged unsuccessfully by the applicant’s counsel. 25 .     On 10 and 11 July 2002 the Kranj District Court held a hearing at which two Russian interpreters were present. The record of the hearing shows that the charges were read out to the defendants, who were also notified of their right not to incriminate themselves and their right to remain silent. The transcript reads as follows:   “we, the defendants, state that we understand the content of the charges. ... we, the defendants, understand the notification of our rights.” 26 .     At the hearing A.V. changed his statement and claimed that a man had offered to find work for him and the applicant. Once they had given him their passports, he had demanded that they take part in the robbery. The applicant had, according to A.V.’s latest account, been too scared to participate, so they had left him in the woods to wait for them. The applicant gave a similar account of events, claiming that he had not been among those who had robbed the bank but had waited for their return in the woods. According to the record of the hearing, the applicant answered questions from the district prosecutor, the presiding judge, his own counsel and counsel for one of his co-defendants. 27 .     In addition to questioning the defendants, the court also examined a number of witnesses. It can be seen from the record of the hearing that the applicant had trouble with the interpreting of one of the witness statements and could only understand it when he read it. He put questions to the witnesses and commented on witness statements about the height of the robbers, and on police officers’ statements concerning mobile telephones they had seized and the number of people who had fled the scene of the robbery. He also referred to the indictment and commented on allegations about the whereabouts of the stolen money. 28.     On 12 July 2002 the applicant’s partner was given permission to visit him in Ljubljana Prison. 29 .     On 16 July 2002 a hearing was held at which the defendants gave closing statements. The transcript includes the following record of the applicant’s statement: “I agree with what has been said by my defence counsel. There is no evidence that I robbed the bank. The only evidence against me is the hair found in the cap, but I have already explained about the hair in the cap and why that cap happened to be on my head. Two men cannot be in a bank wearing the same cap. A person cannot be forced into something like that; nobody forced me. I was not in the bank. ... I am sad that you consider me to be an offender; you can only sentence me for what I actually did and not for what I did not do. I ask that account be taken of my family situation and that I be sentenced accordingly, but not to imprisonment.” 30 .     On 16 July 2002 a five-member bench of the Kranj District Court convicted the applicant, A.V., M.K. and E.B. of robbery and acquisition of unlawfully gained property (a stolen car). The applicant and M.K. were sentenced to eight years and four months in prison, E.B. received a sentence of eight years and seven months, while A.V. was sentenced to five years and four months in prison. L.K., N.U. and G.V. were found guilty of aiding and abetting the robbery and sentenced to five years’ imprisonment. 31.     The judgment contains about twenty pages of reasoning in which the court also responded to arguments relating to the use of Slovenian or Croatian during the robbery. The court noted that not many words had been spoken during the robbery, that all four defendants charged with robbery spoke Russian and were for that reason assisted by Russian interpreters, that they also knew some words in Slovenian as demonstrated during the hearing and that they could have intentionally used words resembling Slovenian. 32.     On the same day, the applicant’s detention was extended. The written decision with a Russian translation were notified to the applicant on the following day. 33 .     On 2 August 2002 the judgment with a translation into Russian were also notified to the applicant. 34 .     On 6 August 2002 the applicant’s counsel appealed against the District Court’s judgment. He complained about alleged shortcomings in the police investigation, the assessment of evidence and his client’s sentence, but did not raise any complaint regarding the applicant’s understanding of the Russian interpreting provided to him. 35 .     On the same day the applicant also lodged an appeal, which was composed of five pages of argument written by hand in Slovenian with the assistance of fellow inmates. The applicant complained about the first-instance court’s assessment of the evidence and about his sentence. He maintained that he had known about the robbery but had not taken part in it. 36 .     On 14 November 2002 the Ljubljana Higher Court dismissed the applicant’s appeal. It found that A.V. had given a detailed and incriminating description, while having legal assistance, that the applicant had been assisted by counsel who had been appointed for him and by an interpreter at his first appearance before the investigating judge, and that there was no indication that the applicant had not been informed when arrested of the reasons for his arrest in a language he had understood. The court was of the view that if the applicant had not understood the reasons for his arrest he would have mentioned it during his questioning by the investigating judge. The applicant was issued with a Russian translation of the judgment, by which his conviction acquired the force of res judicata . 37 .     On 23 February 2003 the applicant sent an application entitled “an appeal to the Supreme Court” to the Kranj District Court. The application was written in Lithuanian, with the exception of an introductory explanation in Slovenian, in which the applicant informed the court that he spoke neither Russian nor Slovenian, adding that he understood a little Russian but could not write in it. In the rest of the document the applicant complained about the assessment of the evidence by the lower courts and alleged that his right to use his own language in the criminal trial had been violated. He also alleged that during his first questioning he had not been represented by counsel or provided with an interpreter. Thus, he had not understood the reasons for his arrest. He also submitted that he had stated at the hearing that he did not understand Russian very well. Despite those issues, the Kranj District Court had not provided him with a Lithuanian interpreter. 38 .     On 24 March 2003 the Kranj District Court instructed the applicant to submit his appeal, which it treated as an application for the protection of legality (an extraordinary remedy by which to challenge the legality of final decisions), in Russian, finding that he had used that language throughout the criminal proceedings and in communication with his counsel. It appears from the Constitutional Court’s decision of 24 March 2005 (see paragraph 41 below) that the Kranj District Court had ordered that the appeal be drafted in Russian after ascertaining that there were no Lithuanian interpreters registered in Slovenia and that translation from that language would therefore have required the assistance of the nearest Lithuanian Embassy. The letter instructing the applicant to submit his application in Russian, and a Russian translation of that letter, were notified to the applicant on 4   April 2003. As the applicant did not reply, on 29 April 2003 the District Court rejected his application as incomprehensible. The decision and a Russian translation were notified to the applicant on 21 May 2003. 39 .     On 20 August 2004 the applicant lodged a constitutional complaint against that decision, alleging that the Kranj District Court had violated his defence rights and his right to use his own language and script. He explained that he could not speak or understand Russian very well, and in particular was not able to read decisions and other documents in Russian owing to the different characters, and that he had thus been prevented from effectively defending himself. His constitutional complaint and additional submissions were handwritten in Slovenian. In the proceedings before the Constitutional Court, the Kranj District Court replied to the applicant’s allegations, submitting that he had at no time stated that he had trouble understanding Russian. 40.     On 30 November 2004 the applicant sent a letter to the Ministry of Justice, written in Slovenian, asking for an explanation as to why he had not had a Lithuanian interpreter at his trial. The letter was forwarded to the Kranj District Court. It replied on 28 December 2004, explaining that the applicant had used Russian to communicate with the court and with his counsel at all stages of the first-instance proceedings. 41 .     On 24   March 2005 the Constitutional Court delivered its decision. It observed that the applicant’s situation was an exceptional one, in that he was not required to properly exhaust remedies in respect of the Kranj District Court’s decision. In its view, the applicant, who was detained at the time, could not have been expected to challenge the impugned decision by means of a standard appeal as he had stated that he could not understand the language in which the decision had been written. The Constitutional Court went on to examine the complaint on the merits, finding in favour of the applicant. It noted that the law afforded special protection to a defendant’s right to use his or her own language and script after detention. The person’s own language would in principle be his or her mother tongue but, if the person had a command of another language, the use of the latter could suffice for oral communication in the proceedings. However, the Constitutional Court rejected the District Court’s view that a defendant who was in custody and who had used a certain language in oral proceedings should also submit written submissions in that language, finding that written communication required a higher level of language proficiency. The Constitutional Court noted that the applicant had been assisted by a Russian interpreter in the first-instance proceedings, which had mainly involved oral communication. After an appeal, proceedings were typically in writing and the accused no longer benefited from the assistance of court-appointed counsel. The Constitutional Court therefore found that the applicant, who had explained in his submissions to the Supreme Court that he could not write in Russian, should be allowed to submit them in his own language. It therefore concluded that the court below had violated the applicant’s right to use his own language in the proceedings, as explicitly provided for by section 8 of the Criminal Procedure Act and as guaranteed by Article 62 of the Constitution. It annulled the Kranj District Court’s decision of 29 April 2003 (see paragraph 38 above) and remitted the applicant’s application for the protection of legality for fresh consideration. 42 .     In the remitted proceedings, the Kranj District Court obtained a Slovenian translation of the applicant’s application for the protection of legality and referred it to the Supreme Court. 43 .     On 26 January 2006 the Supreme Court dismissed the applicant’s application for the protection of legality as unfounded. The Supreme Court established on the basis of the case file that immediately after placing the applicant in police custody, the police had informed him, with the assistance of the Russian interpreter, of the reasons for his arrest and his right to a lawyer. When questioned by the investigating judge, the applicant had also been assisted by the Russian interpreter and his court-appointed counsel. The Supreme Court found that there was no indication in the file that the applicant had been informed of his right to use his own language in the proceedings, either by the investigating judge or by the Kranj District Court. It also found no indication that the applicant had given any statement concerning that right. However, the lack of such notification, did not, in the Supreme Court’s view, undermine the legality of the final judgment, because the applicant had been assisted by a Russian interpreter and by counsel. The record of the hearing had contained no indication that he did not understand Russian. Moreover, the court noted that neither the applicant nor his counsel had raised any issue of a lack of understanding of Russian. The applicant was issued with an original copy of the Supreme Court’s judgment and a Lithuanian translation. 44 .     On 10 June 2006 the applicant lodged a constitutional complaint against the Supreme Court’s judgment, complaining that, while he had a rough understanding of Russian, he could not defend himself orally in that language, let alone in writing. In particular, he alleged that he had not been afforded an opportunity to defend himself in a language that would allow him to clarify the facts of the case and to respond effectively to the charges. He alleged that he had drawn the court’s attention to that fact but that his remark had not been recorded. In addition, the applicant complained that certain documents submitted in evidence had been in Slovenian and had therefore been incomprehensible to him, thus hindering his defence. 45.     On 1 September 2007 the applicant was released on parole. 46 .     On 3 July 2008 the Constitutional Court dismissed ( zavrne ) the applicant’s constitutional complaint. It observed, inter alia , as follows: “All the complaints relate to the proceedings before the first-instance court. From the questioning by the investigating judge until the end of the trial, including during the appeal proceedings, the applicant was represented by counsel with whom he succeeded in communicating in Russian (that fact was not disputed by the applicant in his constitutional complaint). In his appeal against the first-instance court’s judgment, the applicant did not mention the issues raised in the constitutional complaint but instead complained about police procedure, which is not a matter complained of in the constitutional proceedings. Only in his request for the protection of legality, lodged in his own language, and in his constitutional complaint, did the applicant complain of a breach of his right under Article 62 of the Constitution owing to the conduct of the District Court, which had ignored his remarks about his trouble understanding Russian ... Having regard to the foregoing and to the content of the constitutional complaint, the Constitutional Court examined whether the Supreme Court’s view ... violated the applicant’s right to use his own language provided for in Article 62 of the Constitution and whether there had been a breach of his defence rights under the first line of Article 29 of the Constitution. ... In accordance with section 8 of the Criminal Procedure Act, a court should inform a suspect or accused of the right to use his own language. The notification and the statement of the suspect or accused should be recorded in the hearing transcript in its entirety. The omission of such a notification or a lack of record of such a notification or statement can give rise to a material breach of the rules of criminal procedure under paragraph 2 of section 371 of the Criminal Procedure Act (that is, if such a violation affected his ability to defend himself). However, if the court acts contrary to an explicit request of a suspect or accused to use his own language and to follow the hearing in that language, the court commits a material breach of the rules of criminal procedure in an absolute sense under paragraph 1 of section 371 of the Criminal Procedure Act. In the reasoning of the judgment [the Supreme Court] noted that there was no indication in the record of the hearing that the applicant had mentioned that he had not understood Russian or that he or his counsel had requested the use of the applicant’s native language at the hearing. Nor had the latter issue been raised in the application for the protection of legality. ... The allegation that the court had failed to include the applicant’s statement in the record of the hearing was made for the first time in the constitutional complaint. The Supreme Court convincingly established circumstances that show that the applicant understood Russian well enough to receive a fair hearing using that language ... When considering the right to a fair trial it is important to note (and this also the Constitutional Court’s view) that in his application for the protection of legality the applicant did not raise a complaint that he had not been informed of his right to use his native language. Nor did he complain of that in his constitutional complaint. ... The impugned judgments therefore do not violate the right of the applicant guaranteed in Article 62 of the Constitution ... Having regard to the above findings and the fact that throughout the proceedings the applicant was assisted by counsel with whom he succeeded in communicating, his complaint that his defence rights guaranteed by Article 29 [of the Constitution] had been violated must likewise be dismissed. The complaint that some of the evidence in the proceedings was in Slovenian, thus preventing him from familiarising himself with it and defending himself, was not pursued in the proceedings before the lower courts. He has therefore failed to exhaust remedies in that regard ...” 47 .     The fees declared at the end of the trial by the interpreter and the applicant’s counsel, and paid for by the State, show that various services were provided to the applicant. Apart from interpreting during the investigation and court hearings, and the written translation of documents, A.G. took part in certain meetings between the applicant and his counsel. The lawyer visited the applicant in the remand prison for consultation purposes on 8 April (forty-five minutes), 2 August (thirty minutes) and 13   September 2002 (twenty minutes), assisted by A.G., as well as on 9 July 2002 (twenty-five minutes), though it is not clear whether on the latter occasion A.G. was present. The lawyer also assisted the applicant during his court appearances. He also lodged applications for remedies on his client’s behalf in the proceedings at first and second instance. II.     RELEVANT LEGAL MATERIAL A.     Domestic law 1.     The Constitution of the Republic of Slovenia 48 .     The relevant provisions of the Constitution of the Republic of Slovenia read as follows: Article 29 (Legal Safeguards in Criminal Proceedings) “Anyone charged with a criminal offence must, in addition to absolute equality, be guaranteed the following rights: the right to have adequate time and facilities to prepare his defence; the right to be present at his trial and to conduct his own defence or to be defended by a legal representative; the right to present all the evidence that is to his benefit; the right not to incriminate himself or his relatives or those close to him, or to admit his guilt.” Article 62 (Right to Use One’s Own Language and Script) “Everyone has the right to use his own language and script as provided by law in the exercise of his rights and duties and in procedures before State and other authorities performing a public function.” 2.     Criminal Procedure Act (a)     Use of languages in criminal proceedings 49 .     The relevant provisions of the Criminal Procedure Act (Official Gazette no. 63/94 with the relevant amendments) governing the use of languages in criminal proceedings read as follows: Section 4 “(1) Any arrested person shall be advised immediately, in his native language or in a language he understands, of the reasons for his arrest. An arrested person shall immediately be instructed that he is not bound to make any statements, that he is entitled to the legal assistance of counsel of his own choosing and that the competent body is bound to inform his immediate family of his arrest at his request. ... Section 7 (1) Charges, appeals and other submissions shall be filed with the court in the Slovenian language. ... (3) A foreigner who has been deprived of his freedom shall have the right to file submissions with the court in his own language; in other cases foreign subjects shall be allowed to file submissions in their own language solely on the condition of reciprocity.” Section 8 “(1) Parties, witnesses and other participants in the proceedings shall have the right to use their own languages in investigative and other judicial actions and at the main hearing. If a judicial action or the main hearing is not conducted in the language of those persons, an oral translation of their statements and of the statements of others, and a translation of documents and other written evidence, must be provided. (2) Persons referred to in the preceding paragraph shall be informed of their right to have oral statements and written documents and evidence translated for them; they may waive their rights to translation if they know the language in which the proceedings are being conducted. The fact that they have been informed of their right, as well as their statements in that regard, should be placed on record. (3) Translations shall be done by a court interpreter.” (b)     Grounds of appeal 50 .     The relevant provision of the Criminal Procedure Act concerning grounds of appeal reads as follows: Section 371 “(1) A material breach of the provisions of criminal procedure shall be deemed to exist: ... 3) ... where the defendant, counsel, the injured party acting as prosecutor or the private prosecutor was, notwithstanding his request, deprived of his right to use his own language during investigative or other court actions or at the main hearing and his right to follow the proceedings in that language (section 8) ...; ... (2) A material breach of the provisions of criminal procedure shall also be deemed to exist if in preparation for a hearing or in the course of a hearing or in giving judgment the court omitted to apply a provision of this Act or applied it incorrectly, or if in the course of the hearing the court violated the rights of the defence, such that the act or omission influenced or might have influenced the legality and regularity of the judgment.” B.     European Union instruments 51.     The Charter of Fundamental Rights of the European Union (“the Charter”) enshrines the right to a fair trial (Article 47) and respect for the rights of the defence (Article 48(2)). 52 .     On 30 November 2009 the Council of the European Union adopted a Roadmap for strengthening the procedural rights of suspected or accused persons in criminal proceedings (“the Roadmap”). The Roadmap gave rise to 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 (“Directive 2010/64/EU”). Directive 2010/64/EU lays down common minimum rules to be applied within the European Union for the purposes of interpretation and translation in criminal proceedings and in proceedings for the execution of the European arrest warrant. It came into force on 15   November 2010. 53 .     The following recitals of Directive 2010/64/EU are relevant: “... (7) Strengthening mutual trust requires a more consistent implementation of the rights and guarantees set out in Article 6 of the ECHR. It also requires, by means of this Directive and other measures, further development within the Union of the minimum standards set out in the ECHR and the Charter. ... (9) Common minimum rules should lead to increased confidence in the criminal justice systems of all Member States, which, in turn, should lead to more efficient judicial cooperation in a climate of mutual trust. Such common minimum rules should be established in the fields of interpretation and translation in criminal proceedings. ... (14) The right to interpretation and translation for those who do not speak or understand the language of the proceedings is enshrined in Article 6 of the ECHR, as interpreted in the case-law of the European Court of Human Rights. This Directive facilitates the application of that right in practice. To that end, the aim of this Directive is to ensure the right of suspected or accused persons to interpretation and translation in criminal proceedings with a view to ensuring their right to a fair trial. ... (17) This Directive should ensure that there is free and adequate linguistic assistance, allowing suspected or accused persons who do not speak or understand the language of the criminal proceedings fully to exercise their right of defence and safeguarding the fairness of the proceedings. ... (19) Communication between suspected or accused persons and their legal counsel should be interpreted in accordance with this Directive. Suspected or accused persons should be able, inter alia, to explain their version of the events to their legal counsel, point out any statements with which they disagree and make their legal counsel aware of any facts that should be put forward in their defence. ... (21) Member States should ensure that there is a procedure or mechanism in place 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. Such procedure or mechanism implies that competent authorities verify in any appropriate manner, including by consulting the suspected or accused persons concerned, whether they speak and understand the language of the criminal proceedings and whether they need the assistance of an interpreter. (22) Interpretation and translation under this Directive should be provided in the native language of the suspected or accused persons or in any other language that they speak or understand in order to allow them fully to exercise their right of defence, and in order to safeguard the fairness of the proceedings. ... (24) Member States should ensure that control can be exercised over the adequacy of the interpretation and translation provided when the competent authorities have been put on notice in a given case. ... (30) Safeguarding the fairness of the proceedings requires that essential documents, or at least the relevant passages of such documents, be translated for the benefit of suspected or accused persons in accordance with this Directive. Certain documents should always be considered essential for that purpose and should therefore be translated, such as any decision depriving a person of his liberty, any charge or indictment, and any judgment. It is for the competent authorities of the Member States to decide, on their own motion or upon a request of suspected or accused persons or of their legal counsel, which other documents are essential to safeguard the fairness of the proceedings and should therefore be translated as well. ... (32) This Directive should set minimum rules. Member States should be able to extend the rights set out in this Directive in order to provide a higher level of protection also in situations not explicitly dealt with in this Directive. The level of protection should never fall below the standards provided by the ECHR or the Charter as interpreted in the case-law of the European Court of Human Rights or the Court of Justice of the European Union. (33) The provisions of this Directive that correspond to rights guaranteed by the ECHR or the Charter should be interpreted and implemented consistently with those rights, as interpreted in the relevant case-law of the European Court of Human Rights and the Court of Justice of the European Union.” 54 .     Article 2 of Directive 2010/64/EU reads, in its relevant part, as follows: Right to interpretation “1. Member States shall ensure that suspected or accused persons who do not speak or understand the language of the criminal proceedings concerned are provided, without delay, with interpretation during criminal proceedings before investigative and judicial authorities, including during police questioning, all court hearings and any necessary interim hearings. 2. Member States shall ensure that, where necessary for the purpose of safeguarding the fairness of the proceedings, interpretation is available 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. ... 4. Member States shall ensure that a procedure or mechanism is in place 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. 5. Member States shall ensure that, in accordance with procedures in national law, suspected or accused persons have the right to challenge a decision finding that there is no need for interpretation and, when interpretation has been provided, the possibility to complain that the quality of the interpretation is not sufficient to safeguard the fairness of the proceedings. ... 8. Interpretation provided under this Article shall 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.” 55 .     Article 3 of Directive 2010/64/EU reads, in its relevant part, as follows: Right to translation of essential documents “1. Member States shall ensure that suspected or accused persons who do not understand the language of the criminal proceedings concerned are, within a reasonable period of time, provided with a written translation of all documents which are essential to ensure that they are able to exercise their right of defence and to safeguard the fairness of the proceedings. 2. Essential documents shall include any decision depriving a person of his liberty, any charge or indictment, and any judgment. ... 5. Member States shall ensure that, in accordance with procedures in national law, suspected or accused persons have the right to challenge a decision finding that there is no need for the translation of documents or passages thereof and, when a translation has been provided, the possibility to complain that the quality of the translation is not sufficient to safeguard the fairness of the proceedings. ... 7. As an exception to the general rules established in paragraphs 1, 2, 3 and 6, an oral translation or oral summary of essential documents may be provided instead of a written translation on condition that such oral translation or oral summary does not prejudice the fairness of the proceedings. 9. Translation provided under this Article shall 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.” 56 .     Article 5 § 1 of Directive 2010/64/EU deals with the quality of interpretation and translation, providing as follows: “1. Member States shall take concrete measures to ensure that the interpretation and translation provided meets the quality required under Article 2(8) and Article   3(9).” 57 .     Furthermore, Article 7 of Directive 2010/64/EU reads: Record-keeping “Member States shall ensure that when a suspected or accused person has been subject to questioning or hearings by an investigative or judicial authority with the assistance of an interpreter pursuant to Article 2, when an oral translation or oral summary of essential documents has been provided in the presence of such an authority pursuant to Article 3(7), or when a person has waived the right to translation pursuant to Article 3(8), it will be noted that these events have occurred, using the recording procedure in accordance with the law of the Member State concerned.” 58 .     On 22 May 2012 the European Parliament and the Council of the European Union adopted another directive relating to the measures set out in the Roadmap, namely Directive 2012/13/EU on the right to information in criminal proceedings (“Directive 2012/13/EU”). It entered into force on 21 June 2012. 59 .     The following recitals of Directive 2012/13/EU are relevant: “(25) Member States should ensure that, when providing information in accordance with this Directive, suspects or accused persons are provided, where necessary, with translations or interpretation into a language that they understand, in accordance with the standards set out in Directive 2010/64/EU. ... (35) Where information is provided in accordance with this Directive, the competent authorities should take note of this in accordance with existing recording procedures under national law and should not be subject to any additional obligation to introduce new mechanisms or to any additional administrative burden. (36) Suspects or accused persons or their lawyers should have the right to challenge, in accordance with national law, the possible failure or refusal of the competent authorities to provide information or to disclose certain materials of the case in accordance with this Directive. That right does not entail the obligation for Member States to provide for a specific appeal procedure, a separate mechanism, or a complaint procedure in which such failure or refusal may be challenged. ... (38) Member States should undertake all the necessary action to comply with this Directive. A practical and effective implementation of some of the provisions such as the obligation to provide suspects or accused persons with information about their rights in simple and accessible language could be achieved by different means including non-legislative measures such as appropriate training for the competent authorities or by a Letter of Rights drafted in simple and non-technical language so as to be easily understood by a lay person without any knowledge of criminal procedural law.” 60 .     The relevant parts of Articles 3, 4 and 8 of Directive 2012/13/EU provide as follows: Article 3 Right to information about rights “1. Member States shall ensure that suspects or accused persons are provided promptly with information concerning at least the following procedural rights, as they apply under national law, in order to allow for those rights to be exercised effectively: (a) the right of access to a lawyer; (b) any entitlement to free legal advice and the conditi