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The right to interpretation and translation: Positive signs from Portugal?

admin - April 9, 2019 - right to translation and interpretation, right to information, EU Directives on procedural rights

 

This is a guest post written by Fair Trials' LEAP member Sofia Monge. As with all of our guest posts, the views represented are of the author and may not reflect the views of Fair Trials.

A decision from the Court of Appeal of Évora in Portugal on 20 December 2018 (file number 55/16.9GBLGS.E1 – Justice Rapporteur Gomes de Sousa) regarding the application of the EU Directives on the right to interpretation and translation and the right to information in criminal proceedings deserves our applause. The judgement addresses these procedural rights in an exhaustive but clear manner, and is critical of judicial practice in the country.

The case considered official documents which were not translated for the accused during the process, even though the defence had repeatedly drawn attention to the nationality of the accused and their lack of knowledge of the Portuguese language. An interpreter, who was paid by the defendant, was present only in the trial hearing.

The official report by the police stated that the accused “perfectly understands written and spoken Portuguese”. The Court questioned how the police could make such an assessment and found that there was a lack of concern over the requirements to ensure that the accused fully understood the official documents.

As it was not clear if the defendant was proficient in Portuguese, the Court considered that interpretation and translation of the essential documents should have been guaranteed. The Court further considered that the Directives on the right to interpretation and translation and on the right to information were applicable, even though they have not been transposed into Portuguese national law.

It is acknowledged that the Portuguese Code of Criminal Procedure is not sufficient and that the minimum requirements of the translation Directive are not complied with. The Portuguese Code limits the appointment of an interpreter to the active intervention of the accused, and does not require an oral translation of the indictment nor the requirement to read the prosecutorial bill of indictment in the native language of the defendant.

The Directives set standards that safeguard the right to interpretation and the right to translation from the start of the proceedings until the judicial process has been completed. The judgement recognises how the Portuguese judicial practice shows contempt and lack of concern for the appointment of interpreters in the pre-trial stages. Portuguese law doesn’t provide for a provision regarding the types of documents that should be translated, resulting in a judicial practice which excludes translation in most cases.

The Court claimed that an interpreter should already have been appointed at an earlier stage – from the moment of detention or at least from the moment where the accused was compelled to sign the untranslated documents. The Court concluded that accused should get the documents in their native language in order to make sure that the they fully understand them.

In this case, the procedural acts reflected in those documents were invalid since it was not clear if the accused could understand the facts and information they were supposed to provide. Therefore, the appeal brought by the defendant was held to be well-founded: the acts adopted subsequent to the Statement of Identity and Residence were declared ineffective, including the bill of indictment and its notification to the defendant, as well as the guilty verdict, and it was stated that the defendant must be compensated for the expenses occasioned by the payment of an interpreter and/or translator they had privately hired.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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