Inside Police Custody 2
obligations. A finding that a member state has not brought its national legislation into compliance may
result in financial penalties being imposed by the CJEU.
In drafting the Directives, full account was taken of the relevant provisions of the European Convention
on Human Rights (ECHR), and of European Court of Human Rights (ECtHR) case law. However, the
EU legislation was informed by a concern that the ECHR regime was not sufficiently able to ensure that
national authorities comply with their responsibilities to safeguard the procedural rights of suspected and
accused persons. Some of the limitations are practical, in particular the backlog of cases to be dealt with
by the ECtHR, leading to lengthy delays before cases are considered and judgements delivered. However,
other limitations are systemic. The mechanisms for enforcing ECtHR decisions are relatively weak, and
applications can only be made to the court after all domestic avenues of appeal have been exhausted. Of
particular significance is the fact that the court considers the procedural rights of suspected and accused
persons within the context of whether, overall, the proceedings were fair. Together with the fact that the
court can only consider principles in the context of the facts of cases taken before it, the result has been
that whilst the ECtHR has been successful in establishing general minimum standards, it cannot develop
a comprehensive set of procedural standards, nor general guidelines on how they could or should be
implemented.
The EU Directives, together with the enhanced enforcement regime resulting from the Lisbon Treaty, are
able to remedy some of these weaknesses and, whilst detailed implementation of the standards is the
responsibility of member states (with, in certain respects, a wide margin of appreciation), the Directives are
more comprehensive and more detailed than the relevant ECtHR jurisprudence.
The three Directives that are the subject of the current study are the Directive on the right to interpretation
and translation, the Directive on the right to information, and the Directive on the right of access to a
lawyer. The provisions of the Directives are briefly described here, and are more fully explored in the
relevant sections of the report.
1.2.1
The Directive on the right to interpretation and translation
The Directive on the right to interpretation and translation was adopted on 20 October 2010, with a
transposition date of 27 October 2013.5 The Directive provides that suspected and accused persons in
criminal proceedings who do not understand the language of the proceedings: must receive interpretation
assistance free of charge during police interrogations, for communication with their lawyer, and at trial;
and must be provided with a written translation of documents that are essential for them to exercise
their right to defence, including the detention order, the indictment, the judgement and other documents
that are essential. Similar rights and obligations also apply in proceedings for the execution of an EAW.
It appears from the language of the Directive that the rights and obligations regarding translation only
apply to documents provided by the relevant authorities, and not to documents produced by the suspect
or accused. Whilst waiver at the instance of the suspect or accused is permitted in respect of translation,
provided that they have received prior legal advice or have otherwise obtained full knowledge of the
consequences of such a waiver, there is no provision for waiver in respect of interpretation.
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.
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