Credit: CherryX per Wikimedia Commons
Earlier this week, the European Court of Human Rights unanimously held that a criminal defendant has the right to free assistance from a translator during criminal investigatory proceedings if language barriers prevent the accused from having a full understanding of the consequences of waiving his or her rights to keep silent and to legal assistance. See ECtHR, Baytar v. Turkey, no. 45440/04, ECHR 2014, Judgment of 14 October 2014 (French only). The applicant, Ms. Baytar, was questioned in police custody without the assistance of an interpreter, and argued that this violated her right to a fair hearing and to the assistance of an interpreter under Article 6 of the European Convention of Human Rights. [ECtHR Press Release] The Court held that when criminal arrestees do not have a command of the language, States have the obligation to provide free translation assistance at the beginning of the investigation proceedings. [ECtHR Press Release] The Court ordered the State to pay Ms. Baytar 1,500 euros for non-pecuniary damages and 1,300 euros for costs and expenses. [ECtHR Press Release]
Facts of the Case
In April 2001, Ms. Baytar visited her brother, who was imprisoned for involvement with the Kurdistan Workers’ Party (PKK), which is an illegal organization in Turkey. The prison guards found her carrying a piece of paper that contained writing from a member of the PKK, and subsequently held her in police custody while questioning her in Turkish. Ms. Baytar, who does not have a command of the Turkish language, told the police that she found the paper at a bus stop. In December 2001, Ms. Baytar visited her brother in prison again and the guards discovered a document in her possession that detailed the PKK’s strategy inside prisons. The police questioned her in Turkish again and informed her of her right to legal assistance, but she did not assert this right. She told them that she picked up the document from the waiting room. [ECtHR Press Release]
Ms. Baytar was charged in the State Security Court for being a member of and providing support to an illegal armed organization. She was provided with a translator during her hearing, where she stated that she did not possess any document during her December visit, and that her statement to the police in December was referencing her visit in April. Ms. Baytar was sentenced to prison for three years and nine months. Although this judgment was later struck down on procedural grounds, Ms Baytar was re-sentenced to time served and ordered released in April 2003. [ECtHR Press Release]
In September 2004, Ms. Baytar lodged a complaint with the European Court of Human Rights, challenging the lack of assistance from a translator during her questioning in police custody as a violation of Article 6(1) and Article 6(3) of the European Convention on Human Rights.
The Court’s Discussion of the Article 6 Violations
Article 6(1) of the European Convention protects the right to a fair hearing. As a safeguard, Article 6(3) provides that everyone charged with a criminal offense has the right “to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him” and the right “to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”
The European Court held that if the accused does not have a command of the language, then the assistance of a translator is required at the investigation stage of criminal proceedings. The Court explained that an interpreter is necessary at this stage to inform the accused of the charges against him or her and to allow the defendant to meaningfully exercise his or her rights. [ECtHR Press Release]
The Court reasoned that when defendants do not fully understand the language, they cannot effectively waive their rights. Consequently, the Court held that Ms. Baytar’s right to an interpreter attached when she was taken in police custody, and that because she was deprived of this right, she was unable to fully appreciate the consequences of waiving her right to remain silent and to legal assistance, in particular. [ECtHR Press Release]
Similar Cases before the European Human Rights System
The European Court has addressed the right to an interpreter in previous cases. For example, in K. v. France, the former European Commission of Human Rights held that the right to free assistance from an interpreter applies only when the defendant cannot understand or speak the language used in court. See ECommHR, K. v. France, App. no. 10210/82, Admissibility decision, 7 December 1983, para. 8. In that case, the applicant requested an interpreter so that he could defend himself in the Breton language, a minority language in France, but the Commission held that because he could understand French he was not entitled to the assistance of an interpreter. See id. at paras. 7–8.
The Court has also held that the State has an obligation to provide the accused with an interpreter during court proceedings if the defendant needs a translator to be able to participate fully. See ECtHR, Cuscani v. United Kingdom, no. 32771/96, ECHR 2002, Judgment of 24 September 2002, paras. 37–40. There, the Court held that the State had violated Article 6(1) in conjunction with Article 6(3) because the judge failed to appoint an interpreter during the hearing even though the accused’s English was very poor. See id. The Court reasoned that the judge’s instruction that the defendant ask his brother to translate when needed was insufficient to protect the defendant’s right to a fair trial and right to an interpreter. See id. The Court noted that the burden is on the State to ensure that the absence of an interpreter does not prejudice the defendant’s ability to participate fully in the proceedings. See id.
Additional Information
To learn more about the European Court of Human Rights, visit the IJRC Online Resource Hub.
For additional information on the European Court of Human Rights’ judgments relating to the right to a fair trial, see the Court’s Guide on Article 6: Right to a Fair Trial (Criminal Limb) and its factsheet on Police Arrest and Assistance of a Lawyer.