By Stijn Lamberigts
Advocate General Bot killed two birds with one stone in his Opinion in Balogh (currently not available in English). After Covaci, previously analyzed here, the CJEU has now been asked to examine the role of the Translation and Interpretation Directive in special procedures. This Directive is one of the so-called Roadmap Directives, the latest attempt of the EU to increase the mutual trust between Member States (MS) in the field of criminal justice, by establishing EU minimum rules for procedural safeguards. In his Opinion Advocate General Bot gave the referring Court, the Regional Court of the Budapest metropolitan area (Budapest Környéki Törvényszék), more than it had bargained for.
Facts of the case and questions referred to the CJEU
The reference in Balogh was oddly enough not made during an ongoing criminal case, where the suspected or accused persons would under certain conditions be able to benefit from the right to free interpretation or translation under the Translation and Interpretation Directive. Instead the reference was made by a Hungarian court in a special procedure for the recognition of the effects of a final criminal judgment by an Austrian court, the regional court of Eisenstadt (Landesgericht Eisenstadt). The latter court had sentenced Mr Balogh to a prison sentence of four years and six months for a burglary, which Mr Balogh is currently serving in Austria. According to the information provided by the Austrian Government, Mr Balogh was assisted in Austria by a translator who orally informed him of the judgment; however, he received the translated version of the judgment only much later (more than a year after the judgment of the Austrian court).
The Austrian court sent the essential elements of the judgment to the Austrian criminal record service on 15 September 2014, four months after the judgment was handed down, with reference to the relevant ECRIS-code (European Criminal Records Information System) corresponding to the criminal acts that led to Mr Balogh’s conviction. The case does not deal with the transfer of Mr Balogh to Hungary to serve his sentence there, but with keeping up to date the ECRIS system. Subsequently, the Austrian criminal record service informed the competent Hungarian authority (the central office for administrative and public electronic services) of Mr Balogh’s conviction. Thereupon, the Hungarian ministry of Justice informed the Austrian court that, in order for Hungary to recognize the judgment, the decision would need to be notified, as this is required by the special Hungarian procedure for the recognition of foreign judgments.
It is in the context of this special procedure that the referring court is wondering whether Mr Balogh can be required to pay for the translation of the judgment into Hungarian. Under the general provisions of the Hungarian Code of criminal procedure, the convicted person in principle has to pay the costs of the proceedings; costs which are not to be borne by the convicted person are to be paid by the state. With respect to special procedures, such as the one concerning the recognition of foreign decisions, Hungarian law states that the convicted person has to pay the costs of the special procedures, if the person has been held liable for the costs in the main proceedings. These special procedures address accessory issues of criminal law, which are closely linked to the main criminal proceedings. Clearly, the special recognition procedure does not imply a second conviction, it merely deals with the attribution of the same legal effects to the foreign judgment as to a domestic judgment.
The key question is of course whether translation and interpretation costs are also to be borne by the convicted person. In this respect there are currently two diverging approaches in Hungary: under the first one, the costs for the translation of the judgment should be paid by the state on the basis of the Interpretation and Translation Directive; under the second one the translation of a foreign judgment into Hungarian is unrelated to the right to use one’s mother tongue in criminal proceedings and thus the convicted person should pay for it.
In light of these two interpretations, the referring court essentially wants to know whether Article 1(1) of the Interpretation and Translation Directive is also applicable to special procedures, or only to procedures where the criminal liability of a suspect is decided.
Opinion of Advocate General Bot
Advocate General Bot first focused on the question whether the practice of holding the convicted person liable for the translation costs of the judgment in a special procedure for the recognition of foreign judgments is precluded by the Interpretation and Translation Directive. He recalled that Articles 1 and particularly 3 of the Directive provide persons like Mr Balogh with the right to have essential documents, such as the judgment of the Austrian court, translated in Hungarian. Based on a simple reading of the Directive and as the Commission, Hungary and Austria had suggested, he considered the special procedure to fall outside the scope of the Interpretation and Translation Directive, while immediately adding that the special procedure which is applied in Hungary has a dubious legal status (§37). The Advocate General took the opportunity of the preliminary reference to look into this procedure more closely.
That Hungarian special procedure checks and where necessary adjusts the legal effects of foreign judgments to the Hungarian legal system. This procedure strongly resembles an exequatur procedure and violates, according to Advocate General Bot, Article 82(1) TFEU which states that judicial cooperation in criminal matters shall be based on the principle of mutual recognition. The procedure is applied independently of any execution of the judgment in Hungary and of the relevance of the judgment in other criminal proceedings. Therefore, the instruments dealing with such issues, Framework Decision 2008/909/JHA on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences and Framework Decision 2008/675/JHA on the taking into account of previous convictions in MS of the EU, are not applicable.
Advocate General Bot found the special procedure to be in violation of the European ECRIS system of exchanging criminal records information, as governed by Framework Decision 2009/315/JHA on the exchange of information extracted from the criminal record and Decision 2009/316/JHA on the European Criminal Records Information System. These instruments set a significantly simplified procedure whereby a notification by the MS where the person is convicted through the ECRIS system is sufficient and which in principle does not require a translation or the transmission of the judgment. This automated system uses codes for different criminal offences and the standardized format should make it easy to use throughout the EU. On the basis of Article 4(2) of the FD on the exchange of information extracted from the criminal record, central authorities of the MS where a person is convicted have to inform the central authorities of the MS of which that person has the citizenship of the person’s conviction, and the latter authority has to safeguard the information on the conviction as provided by Article 5(1) of the same instrument. The relevant legal instruments do not include the translation of the judgment, as this is not necessary since the codes and the standardized format permit an automated translation (§62) and as this could also undermine the speedy registration in the criminal records of the MS of which the convicted person has the citizenship.
Admittedly, Article 4(4) of the FD on the exchange of information extracted from the criminal record states that the central authority of the MS where the person is convicted can in individual cases and at the request of the central authority of the MS of the convicted person’s citizenship, provide that authority with a copy of the judgment where this could be necessary to consider the need to take a measure at the national level. Advocate General Bot pointed out that the wording of that Article makes it sufficiently clear that this should be the exception and not standard practice (§65), as is currently the case in Hungary, and that Article 4(4) of the Framework Decision cannot thus be used as a justification for the Hungarian practice. The Advocate General logically concluded that, in light of the dubious nature of the Hungarian practice, it should be clear that Mr Balogh cannot be made to pay for the translation of the judgment.
Those who hoped that Advocate General Bot’s opinion in Balogh would provide as much insight in the Roadmap Directives as Covaci, will most likely be disappointed. At best, Balogh can be seen as a clear-cut case of what falls outside the scope of the Interpretation and Translation Directive. That Directive aims at ensuring the right to a fair trial of those suspected and accused persons that do not speak or understand the language of the proceedings by providing them with linguistic assistance. Article 1(2) of the Directive guarantees a broad scope of application by providing that the right to interpretation and translation is applicable, from the time a person is made aware that he or she is being suspected or accused of having committed a criminal offence, until the final determination of whether they are guilty or not. Consequently, a procedure, such as the Hungarian recognition procedure falls outside the Directive’s scope, because it does not lead to a conviction of the person. The recognition procedure merely aims at recognizing a foreign judgment in Hungary and is thus not linked to the aim of the Interpretation and Translation Directive, i.e. helping persons understand the case against them and allowing them to defend themselves against the charges at hand. Therefore, we fully agree with Advocate General Bot that the Directive does not cover the special Hungarian procedure. That being said, the analysis may be less clear-cut when it comes to other special procedures, such as for example post-conviction proceedings dealing with the forfeiture of assets. Although these procedures do not directly deal with the determination on one’s guilt they can have an important impact and understanding the case where it takes place in a language that one does not understand, seems particularly relevant. Future cases may give the CJEU the opportunity to clarify the applicability of the Directive with respect to such special procedures.
Instead of clarifying the Interpretation and Translation Directive, Advocate General Bot’s Opinion in Balogh is in reality mainly a welcome reminder of the ECRIS system. This system should assure a smooth exchange of information on criminal records throughout the EU and help MS have access to the criminal past of individuals in a uniform, fast and easy way. The decentralized system relies on the cooperation of the MS whose citizenship the convicted person has as well as on the cooperation of the MS convicting an individual. The former state should keep an up-to-date criminal record of the convictions of its citizens throughout the EU. In order to do so, MS should inform each other when they convict a citizen of another MS. In theory, this should all run smoothly thanks to the standardized European format which uses reference tables for offences and sanctions and which facilitates automatic translations. Yet, Hungary applies a special procedure whereby foreign judgments systematically need to be recognized by a Hungarian court and it routinely requires the transmission of the foreign judgment. Advocate General Bot made it clear that this does not correspond with Articles 4(2) and 5(1) of the FD on the exchange of information extracted from the criminal record and the Decision on ECRIS. In other words, according to the Advocate General requiring as a matter of standard practice that the convicting MS sends a copy of the judgment and then make the convicted person pay for the translation is not compatible with those legal instruments.
In sum, as far as the interpretation of one of the Roadmap Directives is concerned, the Advocate General’s Opinion in Balogh is not particularly thrilling. Nevertheless, his critical analysis of the Hungarian special procedure shows that the implementation of Framework Decisions remains flawed and a lot of work remains to be done by the MS, but also by the Commission and the Court, as the latter two institutions have gained more power in this field since the end of the transition period on 1 December 2014.