Last Updated on June 1, 2019 by LawEuro
Information Note on the Court’s case-law 221
August-September 2018
Vizgirda v. Slovenia – 59868/08
Judgment 28.8.2018 [Section IV]
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Article 6-3-a
Information in language understood
Article 6-3-e
Free assistance of interpreter
Failure to provide interpretation of criminal proceedings and documentation in a language of which the accused had a sufficient command: violation
Facts – The applicant, a Lithuanian national, was convicted and sentenced to a prison term in Slovenia. He unsuccessfully initiated various legal challenges complaining that he had not been able to defend himself effectively during the trial because the oral proceedings and the relevant documents had not been translated into Lithuanian, his native language, but instead into Russian, which he claimed to have considerable difficulties understanding.
Law – Article 6 §§ 1 and 3
(i) General principles – It was incumbent on the authorities involved in the proceedings, in particular the domestic courts, to ascertain whether the fairness of the trial required, or had required, the appointment of an interpreter to assist the defendant. In the Court’s opinion, that duty was not confined to situations where the foreign defendant made an explicit request for interpretation, but arose whenever there were reasons to suspect that the defendant was not proficient enough in the language of the proceedings. It also arose when a third language was envisaged to be used for the interpretation. In such circumstances, the defendant’s competency in the third language should be ascertained before the decision to use it for the purpose of interpretation was made. The fact that the defendant had a basic command of the language of the proceedings or, as might be the case, a third language into which interpretation was readily available, should not by itself bar that individual from benefiting from interpretation into a language he or she understood sufficiently well to fully exercise his or her right to defence.
In the instant case, the suspect had to be notified, in a language he understood, of his right to interpretation when “charged with a criminal offence”. The Court drew attention to the importance of noting in the record any procedure used and decision taken with regard to the verification of interpretation needs, notification of the right to an interpreter and the assistance provided by the interpreter.
(ii) As regards the reasons for the appointment of a Russian interpreter – There was no indication in the file that any possibilities of securing Lithuanian interpretation had been entertained by the authorities during the trial or the investigation. It was only after the second-instance court’s judgment that the domestic court had made some enquiries about the availability of interpreters in Lithuanian, without any further steps being taken. While that court established that no such interpreters had been registered in Slovenia at the material time and that translation to and from that language would have required the assistance of the nearest Lithuanian Embassy, a translation from Lithuanian to Slovenian and vice versa had in fact been obtained later in the proceedings. In any event, the Government had not put forward any compelling reasons preventing the authorities from appointing a Lithuanian interpreter to assist the applicant. The domestic courts’ decisions had been based on the assumption that the applicant understood Russian and was able to follow the proceedings in that language.
(iii) As regards the assessment of the applicant’s interpretation needs – The authorities had not explicitly verified the applicant’s linguistic competency in Russian. He had never been consulted as to whether he understood the interpretation and written translation in Russian well enough to conduct his defence effectively in that language. In that connection, the Court rejected Government’s argument about the use of Russian in Lithuania.
(iv) As regards other indications of the applicant’s knowledge of Russian – There had been no audio recordings of the questioning by the investigating judge or the hearing and no other evidence to determine the applicant’s actual level of spoken Russian. In the absence of any verification, his lack of cooperation during the police procedure and during the questioning by the investigating judge might be explained, at least in part, by his difficulties expressing himself and following the proceedings in Russian. The few rather basic statements the applicant had made during the hearing, presumably in Russian, could not be considered as sufficient to show that he had in fact been able to conduct his defence effectively in that language. Even though the Constitutional Court had found that the applicant had “succeeded in communicating” with his counsel, its conclusion seemed to be based on an assumption rather than on evidence of the applicant’s linguistic proficiency or actual communication with his counsel. In conclusion, although the applicant appeared to have been able to speak and understand some Russian, the Court did not find it established that his competency in that language was sufficient to safeguard the fairness of the proceedings.
(v) As regards the lack of complaint or request for the appointment of a different interpreter during the trial – Under domestic law the applicant was entitled to interpretation in his native language and the authorities were obliged to inform him of that right and to make a record of such a notification and of the applicant’s response to it. There was no indication that the authorities had complied with that requirement. The Government had given no justification for that failure. In the Court’s view the lack of the aforementioned notification of the right to interpretation, coupled with the applicant’s vulnerability as a foreigner who had arrived in Slovenia only for a brief period before the arrest and had been detained during the proceedings, and his limited command of Russian, could well explain the lack of any request for a different interpreter or complaint in this regard until later in the proceedings, at which point he had been able to use his native language. The Constitutional Court had considered the applicant’s situation to be of an exceptional nature, with the consequence that he had not been required to exhaust regular remedies. The failure by the applicant’s legal representative to raise the issue of interpretation had not relieved the domestic court of its responsibility under Article 6 of the Convention.
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In sum, it was not established in the present case that the applicant had received language assistance which would have allowed him to actively participate in the trial against him. This, in the Court’s view, had been sufficient to render the trial as a whole unfair.
Conclusion: violation (five votes to two).
Article 41: EUR 6,400 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
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