The uncertain impact of directive 2010/64/EU on the right to language assistance in criminal proceedings
Interpreters and translators who are authorised to work in the French justice system have the status of “expert judiciaire” (judicial expert), admitted to the list for the area of their local Court of Appeal (or the Court of Cassation list). Language assistance is of course a right for any suspect or accused not speaking the local language – a right secured by the ECHR under Article 6 § 3 but also, for almost 10 years now, by Directive 2010/64/EU. This was the first in a series of directives on procedural safeguards under the so-called “Stockholm Roadmap”, which took shape following the entry into force of the Lisbon Treaty at the end of 2009. The aim of the Directive was to build on the basic right under the ECHR, covering new ground in relation to the rather limited case-law of the Strasbourg court. For example, it provides for a separate right to the translation of “essential” documents and the right to an interpreter for client-counsel communication. The right to complain about the quality of the service and to have an interpreter replaced is also an “innovation”.
Experts have remained dubious about certain compromises in the Directive, in particular the possibility of translating documents orally (supposed to be an exception but common practice). There is no firm obligation to set up a register of competent interpreters, which is mentioned in the Directive more by way of recommendation. In that respect the French system is arguably better than others, provided there is no excessive use of non-experts; the French “register” even makes a distinction between translators and interpreters, although there is no difference in the admission criteria.
The French Code of Criminal Procedure already contained various provisions concerning the intervention of an interpreter at different stages in the proceedings but it was acknowledged that the existing text did not suffice (in particular it made no specific mention of written translation). Thus by a Law of 5 August 2013, new wording was inserted in the Preamble to the Code, basically summarising the principles of the Directive in one sentence. During the examination of the Bill by the Parliamentary Standing Committee on Legislation, its President joked that “it can’t be easy to find an interpreter in Ukrainian at 10 p.m. on a Friday night at the gendarmerie of Sillé-le-Guillaume”! He was probably right, but the Directive also allows for interpreting in a third language and contains a provision on the use of video-conferencing and other modern technologies – little used in practice. The Law was followed up by a decree and by a circular; importantly the decree identifies the documents to be regarded as “essential” for the purposes of translation (there has already been French and ECJ case-law on this aspect).
An impact study accompanying the bill estimated that the transposition would cost 25 million euros per year (mainly due to the translation of documents and interpreting for counsel). Whether this increase in workload/expense has materialised is doubtful, as experts in France have not seen much evolution. In 2018 the Ministry of Justice estimated translation costs at 12 M€ and interpreting at 38 M€; the estimated impact of the Directive thus appears disproportionate. The Ministry itself seems to admit that the increase has been minimal and more on the interpreting side; the sight translation of documents by an interpreter has kept down translation costs. A report on the application of the Directive drawn up by the EU Fundamental Rights Agency did not criticise the French transposition, simply identifying shortcomings in the system of appointment (also mentioning that France allows for the use of non-experts). The TRAINAC study by the CCBE contained more criticism of France, pointing for example to a “commercial link of dependence between interpreter and paymaster”; in a situation where an interpreter works regularly for the police and courts he or she may be less independent and impartial.
It could easily be concluded that the Directive’s transposition in France has been “much ado about nothing”. After the concerns in the French judicial system that it would not be able to cope with the increased demand for translators and interpreters, the evolution on the ground has been disappointing. The reason for this could partly be a lack of awareness by all parties: lawyers, their clients, judges. A case of inadequate assistance (lack of an interpreter or poor-quality interpreting) could lead, at worst, to a miscarriage of justice or an unfair trial. Even though the right to such assistance is now well established, it is not always implemented practically and effectively.
 If the suspect or defendant does not understand French, he or she shall be entitled, in a language that he or she understands, and until the end of the proceedings, to be assisted by an interpreter, including for communication with counsel in direct connection with any questioning or hearing, and, save where a waiver is given unequivocally and voluntarily, to the translation of those documents which are essential for the exercise of his or her right of defence and to safeguard the fairness of the proceedings ….