Safeguarding procedural rights and monitoring their effective implementation across Europe is at the heart of Fair Trials’ work. The right to interpretation and translation is a fundamental building block for the exercise of other fair trial rights: without understanding the case and evidence against them, defendants cannot participate effectively in proceedings or properly exercise their rights of defence.
Members of Fair Trials’ Legal Experts Advisory Panel (LEAP) in Portugal have raised concerns about the implementation of Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings, particularly regarding the translation of key evidence relied upon by the prosecution.
Although Portugal formally completed the transposition of the Directive in 2023, LEAP members have identified a continuing restrictive approach in judicial practice. Portuguese authorities may limit translation to documents expressly listed in national legislation, rather than assessing whether other documents are essential for defendants to understand the case against them and exercise their defence rights effectively.
A recent case before the Coimbra Court of Appeal illustrates the concern. A Polish defendant charged with drug trafficking received a translated indictment, but not translations of the evidence underpinning it, including expert and forensic reports, police documentation, intercepted communications and witness statements. His request for these materials to be translated was refused.
This restrictive approach raises important questions about compliance with EU law. Article 3 of Directive 2010/64/EU does not establish an exhaustive list of documents requiring translation. Where evidence is necessary for a defendant to understand the accusations, instruct their lawyer and challenge the prosecution’s case, it may constitute an “essential document” requiring translation.
The concerns raised by LEAP members in Portugal highlight a wider challenge for EU procedural rights: formal transposition is not enough. Rights guaranteed under EU law must also be effectively implemented in practice. Continued monitoring of national practice, and, where necessary, clarification from the CJEU; is essential to ensure that minimum procedural safeguards provide meaningful protection across the EU.
This briefing draws on an analysis by Vânia Costa Ramos, Constança Calçada Soares and Tânia Ribeiro Coelho, lawyers practising in Portugal and members of Fair Trials’ Legal Experts Advisory Panel (LEAP). You can download their analysis here.
