Where’s my lawyer? Making legal assistance in pre-trial detention effective 4. Adequate interpretation Positive development: Italy Non-nationals are over-represented among the prison population in all five project partner countries, with particularly high rates of imprisoned foreigners in Greece (52.7% of the total prison population) and Italy (33.5%).78 Beyond the EU, among all Council of Europe Member States, some 40% of the total foreign prison population are held in pre-trial detention,79 which often is due to a lack of address or residence permit; or insufficient language skills.80 In order to ensure the effective legal representation of non-nationals in police interviews and in pre-trial detention hearings, it is key that interpreters are provided so that lawyers are able to communicate with their clients, where they are not able to speak the same language. Recent amendments to the Italian Criminal Procedure Code provide for the interpretation of the consultation with a lawyer before a police interview.81 It further provides for written translation of a series of essential documents and requires the State to bear the costs for interpretation or translation services, irrespective of the ultimate outcome of the proceedings.82 • Ensure the availability of interpretation services from the outset of detention, including for the initial consultation between a suspect and a lawyer. • If necessary, interpretation should be available using communication technology, such as via teleconference, telephone or the internet, where the physical presence of the interpreter is not possible. a. Lack of access to interpretation services in police custody National legal frameworks provide for free interpretation services throughout the entire criminal proceedings for suspects and defendants who do not understand or cannot communicate in the local language (except in Bulgaria, as police detention is not considered to be part of the criminal proceedings). When legal assistance is mandatory, the suspect has the right of interpretation, also free of charge, for communicating with his/her lawyer. However, in practice, partners report numerous obstacles to accessing interpretation services during police custody. Particularly in Greece lawyers reported relying on other detainees to help with interpretation due to the severe shortage of interpreters at the pre-trial stage of the criminal proceedings. • Inadequate language assessment: Problems were identified in all project countries in respect to the assessment of the detained person’s knowledge and understanding of the national language, in order to determine whether interpretation is necessary. There is no standard assessment procedure or process to appoint a qualified interpreter. • The participation of an interpreter should be recorded in a ‘custody’ record held by the police throughout the period of detention. b. Quality of interpretation services Even where translation and interpretation services are available, issues arise regarding their quality. In Romania for instance, even though there are strict conditions for certification of legal interpreters and translators, there is no mechanism in place for the verification of the quality and accuracy of the interpretation/translation. The interpreter is not always fluent in the language or may not have even a basic understanding of the criminal proceedings. Where interpretation services are of insufficient quality, the defendant will not be in a position to understand the proceedings and to participate effectively, which has a direct impact on the lawyer’s ability to offer an effective assistance. • • The modalities to test an accused person’s knowledge and comprehension of the national language should be reviewed and standardised across police stations. • National accreditation systems for interpreters should be set up with strict and objective criteria for admission to the list to ensure the quality of interpretation for an extended number of languages. • Reduce the bureaucratic obstacles to ensuring access to an interpreter or translator. • Make available judicial remedies to challenge a refusal of translation and interpretation. • 78 79 80 81 82 Interpretation of consultation: In most partner countries, the right to interpretation is not sufficiently guaranteed for the consultation between a lawyer and his or her client before a person is interviewed by the police. Accreditation of interpreters: The lack of mechanisms for the accreditation of listed interpreters remains a concern, including in Bulgaria, Greece and Italy, where there is no guarantee of a minimum standard of quality of interpretation. • Special registers for rare languages and dialects should be set up. • Lack of training and evaluation: Specific training, including on the criminal justice system, for interpreters and translators was typically not available, for example See https://www.prisonstudies.org/map/europe (access: 12 September 2019). Council of Europe, 2017, CPT urges European states to hold persons in remand detention only as a measure of last resort and in adequate conditions, available at: http://www.coe.int/en/web/cpt/-/cpt-urges-european-states-to-hold-persons-in-remand-detention-only-as-a-measure-of-last-resort-and-in-adequate-conditions. Wouter van Ballegooij, European Parliamentary Research Service, December 2017, Procedural Rights and Detention Conditions - Cost of non-Europe Report, p. 133, available at: http://www.europarl.europa.eu/RegData/etudes/STUD/2017/611008/EPRS_STU(2017)611008_EN.pdf. Article 143 (1), Criminal Procedure Code. Articles 3, Amendment to the consolidated law on the costs of justice. 23