Interpreting in Russian for a Lithuanian in Slovenia violated fair trial right
Vizgirda v. Slovenia 28.08.2018 (no. 59868/08)
Appointment of a Russian-language interpreter to a Lithuanian citizen without him having adequate understanding of the Russian language. Failure to lodge a complaint or protest by the applicant and his lawyer on the appointment of a Russian interpreter. The Court considered that the absence of objections from the accused did not exempt national courts from their duty to properly and thoroughly address the issue. Infringement of the right to a fair trial.
Article 6 §§ 1, 3
Article 5 §2
The applicant, Danas Vizgirda, is a Lithuanian national who was born in 1980 and lives in Ljubljana (Slovenia).
He was arrested in Slovenia in March 2002 on suspicion of complicity in a bank robbery with six others. He was formally indicted in May of the same year with four other men, all Lithuanians, on charges of robbery, theft and attempted of a motor vehicle.
All the initial proceedings, including communication with a court-appointed defence lawyer, were interpreted into Russian for him. He was also given transcripts of witness statements in Russian. In July 2002 he was sentenced to eight years and four months in prison. His appeal was dismissed.
In February 2003 the applicant complained to the domestic courts that, among other things, he did not understand Russian well, that the first-instance court had ignored his statement to that effect, and that his right to use his own language in the criminal trial had been violated.
His complaint was ultimately dismissed by both the Supreme Court, in January 2006, and the Constitutional Court in July 2008. Both superior courts found that he had never raised a complaint during the criminal proceedings about not being able to understand Russian, that he had had the assistance of counsel, with whom he had also communicated via the Russian language, that he had participated in his trial and that his right to a fair trial had not been violated.
THE DECISION OF THE COURT
The Court observed that it was clear that the authorities had been aware that Mr Vizgirda did not understand Slovenian and had provided him with Russian interpreting and translations in the criminal proceedings. However, it could not find any indication that the authorities had ever asked him whether he understood that language well enough to conduct his defence effectively in it.
The Court did not accept the Government’s argument in favour of a general assumption that Russian was spoken widely in Lithuania. The Government had not given any other explanation why the authorities had believed he had a sufficient knowledge of Russian when appointing an interpreter for him.
The Court found that the authorities were obliged to ascertain the applicant’s competency in the Russian before making the decision to use it for the purpose of interpretation. It referred in this connection to the standards enshrined in the European Union’s Directive 2010/64/concerning the right to interpretation. It added that the fact that a defendant has a basic command of the language of the proceedings or, as may be the case, a third language into which interpreting is readily available, should not by itself bar that individual from benefiting from interpreting into a language he or she understands well enough to fully exercise his or her right to defence.
The Court noted that there were no audio-recordings of Mr Vizgirda speaking in Russian before the investigating judge or at the trial, where he had only made some basic statements in that language.
While the Constitutional Court had found later that he had succeeded in communicating with counsel in Russian, it had not explained that finding by referring to any facts. Its conclusion seemed to have been based on an assumption rather than evidence.
The Government had argued that neither the applicant nor his lawyer had complained about using a Russian interpreter during the investigation. However, the Court observed that the authorities had never informed Mr Vizgirda of his right to have interpreting in his own language. That, and his basic knowledge of Russian and his position of vulnerability as a foreigner facing criminal proceedings, could explain his lack of objections. The fact his lawyer had not complained about a lack of Lithuanian interpreting had not relieved the courts of their duty to look into the matter properly.
Overall, the Court concluded that Mr Vizgirda had not been provided with language assistance which had allowed him to actively participate in the trial against him. That meant that the trial as a whole had been rendered unfair and his rights had been violated.
The Court found that Mr Vizgirda had not exhausted domestic remedies as regards his complaints under Article 5 § 2 about not being informed in a language he understood of the reasons for his arrest and a separate one under Article 6 §§ 1 and 3 (a) and (e) about a lack of Russian interpreters and rejected both as inadmissible.
With regard to its conclusion of a violation of Mr Vizgirda’s rights, it found that no separate issue arose under Articles 13 and 14, read together with Article 6.
Just satisfaction (Article 41)
The Court held by 5 votes to 2 that Slovenia was to pay the applicant 6,400 euros (EUR) in respect of non-pecuniary damage and EUR 2,500 in respect of costs for proceedings before the Court.
Judges Kucsko-Stadlmayer and Bošnjak expressed a joint dissenting opinion which is annexed to the judgment(echrcaselaw.com editing).