Bearing mind that the right expressed in Article 3(7) of the Directive to ‘written translations’ is a
component of the right to a fair trial protected by Article 47 of the Charter, the ‘exception’ whereby
an ‘oral translation or oral summary’ may be provided should be treated as such: an exceptional
power which should be applied only to the extent necessary (the objective of general interest will, of
course, be the effective administration of justice). We would suggest an argument along these lines:
Argue: Article 3(1) of the Directive entitles the suspect or accused to a ‘written
translation’ of essential documents. The power in Article 3(7) is an exception to
this rule, and constitutes a restriction on the right to a fair trial guaranteed by
Article 47 of the Charter which should be applied restrictively and proportionately
and not as a general rule.
This approach entails several other arguments:
Argue: A general rule of national law according to which oral translations are
always provided is contrary to the Directive and a written translation must be
provided unless the Article 3(7) exception is legitimately invoked.
Argue: Reasons of public interest (the administration of justice) militating against
translation must be balanced against the interests of the defendant. This means
regard should be had to the length of the document and to the possibility of
translating at least certain passages of the document in writing, as provided for by
Article 3(4).
Beyond this, we would suggest that the analysis depends upon the criterion in Article 3(7) that an
oral translation or summary can be provided –
‘on condition that such oral translation or oral summary does not prejudice the
fairness of proceedings’.
So, make arguments as to how the specific document, if not provided in writing, will risk prejudicing
the fairness of the proceedings:
Highlight the reasons why the suspect needs the document himself, and the
opportunity to consider it himself, in order to prepare an effective defence, e.g.:
It is a key witness statement and the suspect needs to be able to review the
content in order to instruct you as to inconsistencies or falsehoods in it.
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