Resolution of the ECHR of August 28, 2018 concerning the case of Vizgirda (Slovenia) (application No. 59868/08).
The case was successfully considered an application about the lack of translation of the actions of the parties in a criminal case and the translation of documentation into a language that the defendant had sufficiently. The case has violated the requirements of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
The applicant, a citizen of Lithuania, was convicted in Slovenia and sentenced to imprisonment. The applicant unsuccessfully filed several complaints, arguing that he could not effectively defend himself in court proceedings, since the oral proceedings and the relevant documents were translated not into Lithuanian, which was his native language, but into Russian, which, according to the applicant, he did not know well.
QUESTIONS OF RIGHT
Regarding compliance with paragraphs 1 and 3 of Article 6 of the Convention. (i) General principles. The participating authorities, in particular the courts of Slovenia, were obliged to ascertain whether the principle of fair trial required the appointment of an interpreter to assist the defendant. According to the European Court, this duty was not limited to situations where the defendant, who was a foreigner, directly demanded the assistance of an interpreter, but arose whenever there was reason to believe that the defendant had a poor understanding of the language of the proceedings. This duty also appeared if it was proposed to use a third language for translation. In such circumstances, the possession of the defendant in a third language should have been verified before deciding to use this language as a language for the translation of the judicial process. The fact that the applicant spoke at a basic level the language of legal proceedings or the third language in which translation could be provided does not in itself prevent the defendant from seeking translation into a language that he or she understands well in order to fully exercise his right to defense.
In the present case, the suspect was to be notified in a language that he understood of his right to an interpreter when he was “charged with a criminal charge.” The European Court of Justice drew attention to the importance of specifying in the protocol any procedure used or decision taken with respect to verifying the need for translation, to be notified of the right to an interpreter and to the assistance provided by the translator.
(ii) Regarding the reasons for the refusal to appoint a translator from Russian. There was no indication in the case file that during the investigation or the court proceedings the authorities of Slovenia would use any means of appointing a translator from the Lithuanian language. Only after a decision was made by the court of second instance, the courts of Slovenia made some inquiries regarding the availability of translators from the Lithuanian language, but no further action was taken. Although the court indicated that no such translators were registered in Slovenia at that time, and that translations from Lithuanian and Lithuanian would require assistance from the nearest Lithuanian Embassy, in the course of further proceedings, a translation from Lithuanian into Slovenian and vice versa was organized. In any case, the authorities of Slovenia did not bring any convincing circumstances that would prevent the authorities from appointing a translator from the Lithuanian language to help the applicant. The decisions of the Slovenian courts were based on the assumption that the applicant understood Russian and could participate in the proceedings, using it.
(iii) Regarding the assessment of the need to appoint an interpreter to the applicant. The authorities of Slovenia did not clearly confirm the applicant's proper command of the Russian language. He was never asked whether he understood interpretation or translation into Russian sufficiently to effectively implement his defense in a given language. In this regard, the European Court rejected the argument of the Slovenian authorities on the use of the Russian language in Lithuania.
(iv) With regard to other indications of the applicant’s knowledge of the Russian language. There were no audio recordings of the interrogation of the applicant by the investigating judge or the recording of court hearings or other evidence that would determine the actual level of knowledge of the applicant in spoken Russian. In the absence of any confirmation, the refusal to cooperate on the part of the applicant during the police proceedings and during the interrogation by the investigating judge could be explained at least partially by the difficulties that the applicant experienced trying to express a thought or understand phrases in Russian. Several basic statements made by the applicant at the court session allegedly in Russian could not be sufficient evidence that the applicant could indeed effectively carry out his defense in that language. Even though the Constitutional Court found that the applicant “successfully communicated” with his lawyer, his conclusion appeared to be based on the supposition, and not on the evidence of the applicant's linguistic knowledge or confirmation of the nature of the applicant's real communication with the lawyer. In conclusion, it should be noted that, although the applicant seemed to be able to speak Russian and understood Russian a little, the European Court did not consider it established that the applicant’s knowledge of this language was sufficient to guarantee the fairness of the proceedings.
(v) Regarding the absence of a complaint or a request for the appointment of another interpreter during the trial. According to Slovenian law, the applicant had the right to translate the proceedings in his native language, and the authorities were obliged to notify the applicant about this of his right and make an entry in the case file about the said notification and about the applicant's response to it. There are no indications that the Slovenian authorities have complied with this requirement. The Slovenian authorities have not given any reason to justify such an omission. In the opinion of the European Court, the absence of this notice of the right to an interpreter in conjunction with the applicant’s vulnerable position as a foreigner who arrived in Slovenia for a short period before he was detained and who was in custody during the proceedings, as well as limited knowledge the applicant in the Russian language field could be explained by the absence of any request for a translator replacement or complaint in this respect, until the later stage of the proceedings began, when the applicant was able to speak his own m native language. The Constitutional Court considered the situation of the applicant exceptional, which meant that he was not required to exhaust the available remedies. The absence on the part of the applicant’s representative of requests for a translator did not relieve the Slovenian courts of the obligation provided for in Article 6 of the Convention.
Finally, in the present case it was not established that the applicant would receive legal assistance in a language that would allow him to actively participate in the judicial process. This circumstance, in the opinion of the European Court, was sufficient to recognize the entire trial as unfair.
In the case of a violation of the requirements of Article 6 of the Convention (it was adopted by five votes "for" with one - "against").
In application of Article 41 of the Convention. The Court awarded the applicant EUR 6,400 in respect of non-pecuniary damage, the claim for pecuniary damage was rejected.