TL

On 1st August 2022, the First Chamber of the Court issued a preliminary ruling concerning the interpretation of Articles 2 and 3 of Directive 2010/64/EU and of Article 3 of Directive 2012/13/EU. The case stems from the criminal proceedings carried out in Portugal against TL, a Moldovan citizen speaking Romanian. The core issue was that, apart from the record of placement under investigation, procedural documents of significant importance were not translated in Romanian. Such lack of translation led Mr. TL to disregard his obligation to communicate an change of residence, as well as his obligations under the probation programme upon which the suspension of his sentence was conditional, and to fail to appear at the hearing concerning thereasons for his failure to comply with the probation scheme. Hence, after being arrested due to the revocation of such suspension, Mr. TL sought a declaration of nullity of the three documents that had not been translated, but his claim was set aside on grounds that the passing of time had rectified that nullity. Considering the untranslated documents to be ‘essential documents’ within the meaning of Article 3 of Directive 2010/64/EU, and considering the relevant provisions of Directives 2010/64 and 2012/13 to have direct effect, raised a preliminary question to the Court. The Court reformulated that question, and considered it to be seeking to establish ‘in essence, whether Article 2(1) and Article 3(1) of Directive 2010/64 and Article 3(1)(d) of Directive 2012/13, read in the light of Article 47 and Article 48(2) of the Charter, must be interpreted as precluding national legislation under which, first, the infringement of the rights laid down in those provisions of those directives may be effectively invoked only by the beneficiary of those rights and, secondly, that infringement must be pleaded within a prescribed period, failing which the challenge will be time-barred’. Against this backdrop, the Court first and foremost confirmed that Articles 2(1) and 3(1) of Directive 2010/64 and Article 3(1)(d) of Directive 2012/13, which had not been transposed in the Portuguese legal oder in due time, have direct effect as they are unconditional and sufficiently precise. In addition, it held that the documents at issue in the main proceedings fall within the scope of the said Directives. Furthermore, the Court considered that the two Directives at issue do not lay down any rules concerning the consequences of the breach of the rights they provide, thus leaving the establishment of such rules to the national legislature, which shall act in accordance with the principles of equivalence and effectiveness. Hence, the Court clarified that Articles 2(1) and 3(1) of Directive 2010/64 and Article 3(1)(d) of Directive 2012/13, read in light of Articles 47 and 48(2) of the Charter, and the principle of effectiveness, preclude a national legislation such as the one at issue in the main proceedings, if the period for challenging the infringement of the rights to translation and interpretation commences to run ‘before the person concerned has been informed, in a language which s/he speaks or understands, first, of the existence and scope of his or her right to interpretation and translation and, secondly, of the existence and content of the essential document in question and the effects thereof’.