The arrested person has a number of rights, such as the right to remain silent or to
have the assistance of a lawyer. The decision to invoke or renounce these rights can be
taken only if the person entitled to those rights understands clearly the facts which are
held against him in order to assess the potential consequences of the proceedings and
consider the wisdom of renouncing those rights.26
Whilst the ECtHR is here aiming more at the situation where interpretation is not provided for
someone with only a limited understanding of the forum language (as in the case in question), it
applies equally when interpretation is of poor quality, as this may similarly give rise to
misunderstandings.
Most relevant, though, is the approach of the ECtHR to adequacy of interpretation actually provided.
The key statement is the following, found in all the relevant cases:
‘Interpretation assistance provided should be such as to enable the defendant to have
knowledge of the case against him and to defend himself, notably by being able to put
before the court his version of the events’. 27
The ECtHR thus links adequacy of interpretation to the exercise of other rights, in particular that of
being informed of the case against one (Article 6(3)(a)) and being able to defend oneself (Article
6(3)(b)). The case-law further establishes that the authorities are required to respond to possible
signs that this standard is not being met:
‘In view of the need for the right guaranteed by [Article 6(3)(e)] to be practical and
effective, the obligation of the competent authorities is not limited to the appointment
of an interpreter but, if they are put on notice in the particular circumstances, may also
extend to a degree of subsequent control over the adequacy of the interpretation
provided’ (paragraph 74).28
Examples of what constitutes exercising ‘control’ when ‘put on notice’ is the subject of precious little
case-law, but there are two examples:
Violation of Article 6(3)(e) due to the failure to ensure adequate interpretation
when it was known the defendant in a sentencing hearing had difficulty
communicating, the court instead relying on the ‘untested language skills’ of a
family member who happened to be in court;29
No violation of Article 6(3)(e) in respect of an interview conducted in French by a
Swedish customs officer, in that the officer had taken careful measures to check
communication was effective and the courts had, subsequently, assured itself that
it was safe to rely upon the evidence based on those checks.30
The difficulty with these decisions is that the ECtHR is, in most of them, reaching its own
determination as to whether there has been a violation of Article 6(3)(e) or not. The findings are
26
Case of Baytar v. Turkey App. no 45440/04 (Judgment of 14 October 2014), para. 53 (free translation).
Kamasinski v. Austria App. no 9783/82 (Judgment of 19 December 1989) paragraph 74.
28
Ibid
29
Cuscani v. United Kingdom App. no 32771/96 (Judgment of 24 December 2002).
30
Diallo v. Sweden, cited above note 1212.
27
21
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