provided, or if translation waived.
Article 8
Nonregression
Directive does not limit safeguards arising under international or
national law offering higher level of protection.
2. Purpose and objectives
As explained below, the Directive builds upon the standards already established in the ECtHR’s caselaw. This is reflected in the recitals to the Directive. Recitals do not establish obligations in
themselves, but contain important information as to the background of a legislative instrument and
provide guidance as to its interpretation. In the case of the Directive, it appears that its main
purpose is to enshrine existing ECHR standards as clear law.
‘(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.’
‘(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 (…)’.
These recitals make clear that the Directive is intended to facilitate the application of rights which
already exist under the ECHR. This means that, when you are making legal arguments, you can, if you
wish to, refer to ECtHR case-law to suggest how the provision of the Directive should be interpreted.
For this reason, where we consider this helpful, we have included occasional references to ECtHR
case-law in this Toolkit (in particular in relation to the concept of ‘exercising control when put on
notice’). However, as mentioned above, compared to the ECtHR case-law, the Directive is clearer
and it may also provide more robust protection than the ECtHR so we encourage you to base your
arguments on the Directive itself as a rule. Indeed, the recitals introduce new ‘EU’ language:
‘(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 proceedings.’
‘(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 proceedings.’
These concepts of enabling the suspect or accused to ‘fully to exercise their right of defence’ and of
‘safeguarding the fairness of proceedings’ re-appear throughout the Directive and the other
measures adopted under the Roadmap. Their meaning is undefined and open to interpretation.
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