Case C-216/14 Covaci –Minimum rules, yet effective protection?
By Stijn Lamberigts
Covaci is the first case dealing with two of the so-called Roadmap Directives on procedural safeguards in criminal proceedings, Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings and Directive 2012/13/EU on the right to information in criminal proceedings. The Roadmap Directives are 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. An earlier attempt failed and some have questioned the added value of the Roadmap Directives to the standards provided by the ECHR and the Charter of Fundamental Rights. Both the CJEU and the national courts can play a defining role in ensuring that the minimum rules of the Roadmap Directives really contribute to more effective defence rights throughout the EU. The preliminary ruling in Covaci seems to indicate that the CJEU is willing to take up that role – to a large, but not unlimited, extent.
Facts of the case and questions referred to the CJEU
Covaci was triggered by a simple police stop in Germany where Mr Covaci, a Romanian citizen, presented a forged proof of insurance and failed to show valid mandatory civil liability insurance for a motor vehicle. Since he did not have an address in Germany, he was obliged to appoint a person with a fixed German address who could receive court documents on his behalf and subsequently notify him by regular mail. The persons appointed were employees of the Amtsgericht Laufen (the referring court).
Upon completion of the investigation, the prosecutor requested the Amtsgericht Laufen to issue a penalty order (Strafbefehl) imposing a fine on Mr Covaci. The procedure to issue a penalty order is a simplified criminal proceeding, without a hearing or trial. Once the penalty order has been served, an objection can be launched in writing, or orally at the registry of the issuing court. The two weeks’ period to file an objection starts to run from the moment the penalty order is served upon the subject of it, or for those not having a fixed address in Germany, from its service upon the appointed person. A timely objection results in a classic trial.
Before issuing the penalty order, the Amtsgericht Laufen referred two questions to the CJEU. Firstly, the referring court was uncertain about the conformity of the German legislation on the language of court proceedings with the Interpretation and Translation Directive. This question arose from the prosecutor’s request to specify that written observations, including objections, should be made in German. Secondly, the referring court had doubts as to the compatibility of the obligation for individuals, not having a fixed German address, to appoint a person to receive documents with the Right to Information Directive. The referring court questioned whether it was acceptable for the two weeks’ period for filing objections to start once court documents were served upon the appointed person, regardless of the actual knowledge of the suspect. This could lead to situations where the suspect would not be able to make a timely objection or would have less than two weeks to do so, for example when the penalty order forwarded by regular mail reaches him after more than two weeks.
Judgment of the CJEU
Linguistic assistance and legal remedies
The CJEU swiftly addresses the applicability of the Interpretation and Translation Directive to Mr Covaci’s case, by referring to its broad scope. It applies from the time a person is made aware by the competent authorities of a MS that he is suspected or accused of having committed a criminal offence until the conclusion of the proceedings, including sentencing and the resolution of any appeal. A penalty order acquires force of res judicata once the two weeks’ period has passed and therefore the Court holds the Directive to be applicable.
It then examines whether Articles 2 and 3 preclude national legislation prohibiting the filing of written objections in another language than the one of the proceedings.
The Directive should be interpreted in light of its context and objectives (§29): in order to guarantee the fairness of the proceedings and the ability to exercise one’s right of defence, a person should be able to make statements in his or her own language (§§33 and 37). The CJEU accepts the importance of free and adequate linguistic assistance, in order for a person to be informed fully and in a language that he understands, as well as to enable him to give his or her version of the facts. That assistance is limited, as obliging MSs to take care of translations of all written appeals, including objections, brought by a suspected or accused person would exceed the objectives of the Directive (§38 and 47). The Court adds that Article 2 of the Directive covers objections made orally at the registry (§42), but not the written translation of documents produced by accused or suspected persons (§40). As such this is not problematic as Article 3, entitled ‘Right to translation of essential documents’, is the article that should be considered for that question. The actual wording of Article 2 of the Directive seems to be important in this context (§§30-32): Article 2 refers to oral interpretation of oral statements, and Article 3 to the translation of documents (§30).
Then, the Court’s focus shifts to Article 3 and its applicability to a written objection. The provision ensures the ability to exercise the right of defence and the fairness of the proceedings (§43). Its scope is in principle limited to translating documents from the language of the proceedings into the language understood by the accused or suspected person (§§44-47). This interpretation is supported by the non-exhaustive list in Article 3(2) and the reference to ‘enabling suspected or accused persons to have knowledge of the case against them’ in Article 3(4). This means that Mr Covaci is in principle not entitled to file a written objection in a language that he understands. Nevertheless, the Court suggests that he can still foster some hope: MSs can grant broader linguistic assistance as the Directive only provides for minimum rules. Moreover, Article 3(3) gives national courts the power to consider any document, not listed in Article 3(2) to be essential (§§48-50), in which case, in accordance with Article 4, the MS bears the cost of the translation. In its analysis the referring court should take the specific characteristics of the penalty order procedure, as well as the circumstances of the case into account (§50). So after all, the referring court may consider the objection as an essential document and the costs of translation are to be borne by the state.
The Right to Information Directive and the serving of court documents
Secondly, the CJEU addresses the starting point of the two weeks’ period for launching objections. For those without a fixed address in Germany, that period starts once the penalty order has been served on the person appointed to receive documents on their behalf. Once the appointed persons have received the documents, they forward them to the accused person by regular mail (Opinion of AG Bot, §§93-94).
It is important to note that the serving of the penalty order is the first opportunity for the person concerned to be informed of the accusations against him and therefore, it should comply with Article 6 of the Directive (§61). The Directive does not address the way in which the information on the accusation should be given to the accused or suspected person. Yet, the Court stresses the importance of the underlying objectives of the Directive: enabling the preparation of a defence and safeguarding the fairness of the proceedings (§63). Moreover, MS should avoid discriminating between persons having a fixed address on their territory and those who do not, as only the latter are required to appoint a person to receive court documents on their behalf and as they are the only ones to whom the potentially detrimental method for calculating the two weeks’ period applies. Therefore, the CJEU holds that the Directive does not preclude legislation that obliges someone not residing in its territory to appoint someone on whom documents can be served, as long as the accused person actually has the full period prescribed for filing an objection. In other words, Mr Covaci may be required to appoint someone upon whom documents can be served, as long as he has two weeks to file an objection.
Covaci gives some meaningful insights on the Court’s willingness to give full effectiveness to the defence rights included in the Roadmap Directives.
Its swift approach to the applicability of the Interpretation and Translation Directive shows its readiness to apply it to a broad range of situations, including to a simplified such as the one of penalty orders. Moreover, the Court confirms the broadness of the right to interpretation by confirming that the suspect can benefit from such assistance when he orally launches an objection. The Court’s approach to the translation of documents is more restrictive, though it is to be admitted that the Directive offers some arguments for such an approach. What was particular in Covaci, is that it was not about the extent to which documents drafted in the language of the proceedings should be translated into the suspect’s language, as is usually the case, but about the need to translate documents produced by the suspect into the language of the proceedings. According to the CJEU, Article 3(2) only includes documents produced by competent authorities and Article 3(4) refers to the ability of the suspected or accused person to have knowledge of the case against him (see also Opinion AG Bot, §57). Moreover, recital 22 to the Directive supports the view adopted by the Court that translations of documents should only be made to help the suspect understand the case against him. Therefore the costs of the translation of a document from the suspect’s language into the one of the proceedings would not need to be borne by the state.
Nevertheless, I agree with AG Bot that, in order for the accused person to fully exercise his right of defence, without facing additional hurdles, linguistic assistance should cover the translation of documents into the language of the proceedings. Although I am not advocating for an unlimited right to linguistic assistance, it should include an essential document such as an objection. The wording of Article 3(1) and (9) in fine seems to support that view, as they stress the importance of the translation of documents for the right of defence and the fairness of the proceedings. Article 3(1) can also support that view.
Moreover, it seems odd that Mr Covaci would be entitled to help of an interpreter when he physically goes to the registry of the national court to orally object to the penalty order or when he sits down with a lawyer to file a written objection, but not when he wants to file a written objection by himself from his home (see also Opinion AG Bot, §69). Requiring a suspect to travel several hundreds or thousands of kilometers to have access to linguistic assistance does not give full effectiveness to the right to linguistic assistance. More accessible alternatives should be envisaged, as has been suggested by the European Commission and AG Bot (Opinion §77), for example a bilingual appeal form could be attached to the conviction. Unlike AG Bot, who argues that Article 3 only addresses translation of documents from the language of the proceedings into the language of the suspect, I believe that Article 3 is the appropriate legal basis for such an approach, and not Article 2 as that Article seems to be limited to oral communication. Fortunately, the Court leaves room for an interpretation that favours effective defence rights by referring to Article 3(3) and by highlighting that MS can go beyond the minimum rules of the Directive.
The CJEU’s answer to the second question shows its willingness to interpret the Roadmap Directives as a tool for defence rights that are effective and not merely theoretical. The Court ensures that the right to information is not an empty shell and uses the relevant Directive to address the procedure for communicating information about the accusation, a point not expressly regulated by Article 6 of the Right to Information Directive. Admittedly, the approach taken by the Court can be challenging for judicial authorities throughout the EU: the burden of proof that the person has had the full period to launch an objection would rest on the competent authorities and that burden may be a heavy one.
Is there still room for hope that the Roadmap Directives will raise the standards of criminal justice after Covaci? The CJEU’s approach to the second question has shown that it is willing to give full effectiveness to the rights enshrined in the Right to Information Directive. As for the Right to Interpretation and Translation Directive, the Court has stressed its broad scope, as well as the broadness of Article 2 and we can only hope that its finding as to the translation of documents was just a sign of cold-water fear that will be overcome in future judgments interpreting the Roadmap Directives. And even in that context the Court still leaves room for a broad interpretation of the Directive. In sum, there is still hope that the CJEU, together with national courts and with the help of mechanisms such as enforcement by the Commission and direct effect of provisions of the Roadmap Directives, will lead to more effective rights of defence throughout the EU.
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