Inside Police Custody 2 2. The right to interpretation and translation 2.1 Transposition of the Directive Member states were required by the terms of the Directive to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive by 27 October 2013, and to transmit the text of those measures to the Commission (Art. 9(1) and (2)). The governments of all of the countries in the study did introduce some measures, and reported having done so to the Commission. However, the extent and level of detail of such measures varies considerably. It is apparent that some states went to considerable lengths in order to ensure that their laws and regulations comply with the various requirements of the Directive, whereas others appear to have taken a minimalist approach, in some cases avoiding key obligations imposed on them by the Directive. In broad terms, the rights to interpretation and translation conferred by the Directive apply ‘to persons from the time that they are made aware by the competent authorities of a Member State, by official notification or otherwise, that they are suspected or accused of having committed a criminal offence until the conclusion of the proceedings’ (Art. 1(2)). The right to interpretation applies to suspected or accused persons ‘who do not speak or understand the language of the criminal proceedings concerned’ (Art. 2(1)). The right to translation applies to suspected or accused persons who do not understand the language of the criminal proceedings concerned (Art. 3(1)). Whilst the term ‘suspected or accused persons’ is not defined, it is clear that the rights are not confined to persons who have been formally arrested, nor to persons who have been detained in criminal proceedings. It is the case that the rights apply (only) from the time that a person is made aware that they are suspected or accused of having committed a criminal offence, but the case-law of the ECtHR has consistently held that authorities cannot avoid fair trial rights by the use of linguistic or procedural artifices.14 The key questions in determining whether the rights conferred by the Directive apply are whether a person is, in fact, suspected or accused of having committed and criminal offence, and whether ‘the situation of the [person suspected or accused] has been substantially affected’.15 The approach taken by the government of Bulgaria to transposition of the Directive is the same as for the other Directives examined in this study, that is, that it only applies to suspects and accused persons after the filing of pre-trial proceedings. As a result, under domestic law, the right does not apply to persons who have been detained by police on suspicion that they have committed a crime. The police can interrogate a person so detained, and whilst any statement made by the person cannot directly be used as a ground for conviction, such a statement can be included in the file, and thus be considered by a court when determining guilt, through the testimony of the police officers concerned (and see section 1.2.4 above). In our view, it is difficult, if not impossible, to sustain an argument that the situation of such a detained person has not been substantially affected.16 The measures adopted by Bulgaria also suffer from other deficiencies: the law refers to persons who do not ‘speak’ Bulgarian, and does not explicitly extend the right to interpretation to those who do not ‘understand’ Bulgarian; the obligation on the police, where the See, for example, ECtHR 21 February 1984, Ozturk v Germany, No. 8544/79; and see section 1.2.4 above. ECtHR 15 July 1982, Eckle v Germany No. 8130/78, para. 73. 16 Note, for example, that a law in Scotland that permitted the police to detain a person suspected of a criminal offence without arresting them, and to interrogate them without access to a lawyer was, following extensive consideration of ECtHR case-law, held by the UK Supreme Court to be incompatible with Art. 6 of the ECHR. See Cadder v HM Advocate [2010] UKSC 43. 14 15 20