IS

On 23 November 2021, the Grand Chamber of the Court rendered its judgement concerning the interpretation of article 5(2) of Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings, and article 4(5) and article 6(1) of Directive 2012/13/EU on the right to information in criminal proceedings in a case concerning a swedish national, IS, against whom criminal proceedings had been brought by the Hungarian authorities in a language he does not speak.

During his questioning by the Hungarian investigative authorities, IS, who does not speak Hungarian, was assisted by a Swedish-language interpreter. However, according to the Hungarian District Court in charge of the case, there is no information as to how the interpreter was selected, how that interpreter’s competence was verified, or whether the interpreter and IS understood each other.

In these circumstances, the referring judge expressed doubts as to whether Hugarian law, which does not provide for an official register of translators and interpreters, nor it specifies who may be appointed in criminal proceedings as a translator or interpreter and according to what criteria, is compatible with Directive 2010/64 on the right to interpretation and translation in criminal proceedings, and Directive 2012/13, on the right to information in such proceedings. In the event of incompatibility, the referring court also seeks to know whether the criminal proceedings may be continued in the absence of the accused, as such proceedings are provided for under Hungarian law, in certain cases, where the accused is not present at the hearing.

The referring court raised also some other questions of interpretation related to the principle of judicial independence as referred to in the second subparagraph of Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights of the European Union which were though deemed inadmissible.

By decision of 10 September 2019, the Hungarian Supreme Court held that the initial request for a preliminary ruling was unlawful on the ground, in essence, that the questions referred were not relevant for the resolution of the dispute in the main proceedings. Since the referring judge was uncertain whether such decision can be compatible with the preliminary ruling system established by Article 267 TFEU and given the deterrent impact such decision may have on judges in the lower courts to request the Court of Justice to give a ruling, he made a supplementary request for a preliminary ruling in that regard.

The Grand Chamber first addressed the complementary question, ruling that Article 267 TFEU must be interpreted as precluding the supreme court of a Member State from declaring, following an appeal in the interests of the law, that a request for a preliminary ruling which has been submitted to the Court under article 267 TFEU by a lower court is unlawful on the ground that the questions referred are not relevant and necessary for the resolution of he dispute in the main proceedings, without, however, altering the legal effects of the decision containing that request. In such circumstances, the principle of the primacy of EU law requires the lower court to disregard the decision of the supreme court of the Member State concerned. In connection to this, the Court also found that Article 267 TFEU must be interpreted as precluding disciplinary proceedings from being brought against a national judge on the ground that he or she has made a reference for a preliminary ruling to the Court of justice under that provision.

Lastly, concerning the obligations of the Member States with regard to interpretation and translation in criminal proceedings to which the first question relates, the Grand Chamber provided clarification on the two applicable directives on procedural rights. According to the Court, Article 5 of Directive 2010/64 on the right to interpretation and translation in criminal proceedings must be interpreted as requiring Member States to take concrete measures in order to ensure that the quality of the interpretation and translations provided is sufficient to enable the suspect or accused person to understand the accusation against him or her and in order that that interpretation can be reviewed by the national courts. Nevertheless, the establishment of a register of independent translators or interpreters cannot be regarded as being required of Member States by that directive, but this is only one of the means likely to contribute to the attainment of the aforementioned objective. In that regard, the Court of Justice noted that it is for the referring court to carry out a specific and precise assessment of the facts of the particular case in order to ascertain that the interpretation provided in that case to the person concerned was of a sufficiently quality.

In addition, the Court of Justice explained that Directive 2010/64 on the right of interpretation and translation in criminal proceedings and Directive 2012/13, on the right of information in criminal proceedings read in the light of Article 48(2) of the Charter, must be interpreted as precluding a person from being tried in absentia when, on account of inadequate interpretation, he or she as not been informed, in a language which he or she understands, of the accusation against him or her or where it is impossible to ascertain the quality of the interpretation provided and therefore to establish that he or she has been informed, in a language which he or she understands, of the accusation against him or her.