3. The ‘oral translation / summary’ exception
Article 3(7) provides:
‘7. As an exception to the general rules established in paragraphs 1, 2, 3 and 6, an oral
translation or oral summary of an essential document may be provided instead of a
written translation on condition that such oral translation or oral summary does not
prejudice the fairness of proceedings (…)’.
Our remarks on this provision are these:
As discussed above, Article 3(7) establishes a clear rule in favour of ‘written’ translations.
By this provision, the Directive allows Member States to give an oral translation or summary of
an essential document instead of providing a written translation. However, this is expressly
phrased as an ‘exception to the general rule’. It therefore falls to be interpreted restrictively.
4. The right to request translations and the right to challenge the refusal to
provide them
We reproduce again Article 3(3), as well as Article 3(5):
‘3. The competent authorities shall, in a given case, decide whether any other
document is essential. Suspected or accused persons may submit a reasoned request
to that effect (emphasis added).
(…)
5. Member States shall ensure that, in accordance with procedures in national law,
suspected or accused persons have the right to challenge a decision finding that there
is no need for the translation of documents or passages thereof (…)’.
Again, these provisions leave much unanswered:
There is no indication as to the person to whom the ‘reasoned request’ should be addressed.
Nor is there any indication of the nature of the authority competent to hear ‘challenge’ against
the decision finding that there is no need for the translation of documents or passages thereof.
These matters are therefore for the Member States to organise, but in accordance with Article
47 of the Charter and the general principle of effective judicial protection, it must be assumed
that the refusal of translations must be subject to effective judicial oversight.
It follows logically from the requirement to submit a ‘reasoned request’ and the opportunity to
challenge a negative decision that the refusing authority should also provide reasons for its
refusal. This follows from the tradition of defence rights in EU law, which requires the provision
of reasons upon which a decision is taken to enable the affected person to defend his rights. 41
41
See Joined Cases C-584/10 P etc., Commission and Others. v. Kadi [ECLI:EU:C:213:518], para. 100.
39
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