IV –TRANSLATION OF ESSENTIAL DOCUMENTS A. THE ISSUE A suspect or accused person needs to know the case against him in order to exercise his rights of defence. A person deprived of their liberty needs to be informed promptly of the reasons for their arrest so they can challenge their detention. If the suspect or accused person does not know the language spoken in the relevant country, they need to be told in their own language. Outside specifically oral phases of the criminal process, such as police questioning and court hearings, the information will often be in the form of a document, which will need translating. In practice, LEAP members have reported to us a number of issues regarding access to translated documents in criminal proceedings. In some countries: - Translations are provided of only a limited list of documents, and there is often no right to appeal this or to request additional documents; and - It is common for oral, rather than written, translations to be provided, especially where the defendant has a lawyer (this issue was reported in many countries). There is no doubt that a written translation will often be more useful to the suspect or accused person than an oral explanation of a written document such as an indictment, judgment or detention decision. Having a written version of the document allows the suspect or accused to examine it in his own time, which will help him prepare his defence.36 For a person detained, having a written decision will allow him to understand the reasons for his detention and respond to these, which he may often have to do without the assistance of a lawyer. However, the issues described above correspond to areas of flexibility in the ECtHR case-law, which recognises that (i) there is no general right to translation of every document in the case file,37 and (ii) ‘translation’ need not necessarily be in written form, with oral linguistic assistance considered satisfactory.38 As we will see below, the Directive establishes a clear right to translation of ‘essential’ documents, specifying certain documents in particular and leaving it to the Member States to examine which other ones need to be translated on a case-by-case basis. However, like the ECtHR case-law, it recognises that Member States can provide an oral translation or summary instead. Below we consider ways in which the Directive can be used to challenge the issues discussed above. B. THE ECHR BASELINE The ECtHR case-law on translations is not particularly helpful. The Directive will break new ground, with its definition of ‘essential documents’ and clearer provisions on oral summaries and redacted translations a much more prescriptive normative framework. However, we review the basics as regards the ECtHR case-law as these help us to understand the derogations in the Directive. 36 See, in this regard, Maybe paragraph 79 of Kamasinski v. Austria, cited above note 27, paragraph 79 (discussed below). Hermi v. Italy, cited above note 17, paragraph 70. 38 Case of Husain v. Italy, App no. 18913/03 (Judgment of 24 February 2005); Hermi v. Italy, cited above note 17, paragraph 70 Hacioglu v. Romania, cited above note 10, paragraph 88. 37 36