Frank Sleutjes

On 11 May 2017, Advocate General Wahl delivered his Opinion in case C-278/16 on Directive 2010/64/EU on the right to interpretation and to translation in criminal proceedings. This case involves the interpretation of the concept of “essential document” under Article 3 of Directive 2010/64, which requests Member States to ensure that suspected or accused persons who do not understand the language of the criminal proceedings concerned are, within a reasonable period of time, provided with a written translation of all documents which are essential to ensure that they are able to exercise their right of defence and to safeguard the fairness of the proceedings.

In November 2015, a penal order was issued against Mr. Sleutjes, a Dutch citizen who does not understand German, on account of unlawfully leaving the scene of an accident, in which he was fined 30 day penalties of 30 euros and his right to drive was revoked. The penal order was notified to Mr. Sleutjes in German. It included a translation in Dutch only of the information on legal remedies, specifying that the penal order would become legally binding and enforceable unless the defendant lodged an objection in German within two weeks of notification. His objection in German was dismissed because of its late submission. In this context, the referring court asks the Court whether penal orders are to be translated for the accused pursuant to Article 3 of Directive 2010/64.

In his opinion, based on an examination of the wording, context and aim of Directive 2010/64, AG Wahl concluded that penal orders as the one issued against Mr. Sleutjes are to be classified as an “essential document” in criminal proceedings and must therefore be translated in the event that the person to whom they are addressed does not understand German.

The AG further noted that Directive 2010/64 does not specify the language in which the accused person who does not understand the language of the procedure must receive a translation of the essential documents; it would therefore seem possible to have recourse to a ‘pivot’ language which that person understands, instead of his native language.

Finally, as to the consequences of a breach to the right to translation, AG Wahl found that the silence of Directive 2010/64 on this matter leaves Member States free to choose between different solutions. However, such procedural autonomy must be exercised in line with the principles of equivalence. He therefore noted that the period for the lodging of an objection to a penal order ought not to be set in motion before the moment when the person concerned receives a proper translation of the penal order. Anything shorter would risk compromising the rights of the defence and, by the same token, the principle of effectiveness.