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FEDERAL CONSTITUTION
MEDICAL DEVICES ORDINANCE
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
CRIMINAL CODE
CYBERCRIME CONVENTION
COMMERCIAL REGISTER ORDINANCE
FEDERAL ACT ON COMBATING MONEY LAUNDERING AND TERRORIST FINANCING
FREEDOM OF INFORMATION ACT
FEDERAL ACT ON THE INTERNATIONAL TRANSFER OF CULTURAL PROPERTY
- I. Systematics, history, codification
- II. Terminology and fields of application
- III. Right to translation of persons involved in the proceedings (para. 1)
- IV. The accused person's right to translation (para. 2)
- V. Translation of files (para. 3)
- VI. Victim's right to translation by a person of the same sex (para. 4)
- VII. Requirements concerning translators (para. 5)
- VIII. Translation costs
- IX. Legal remedies
- X. Distinctions
- XI. Case studies
- XII. Outlook: Technical aids
- Recommended further reading
- Bibliography
- Materials
I. Systematics, history, codification
1 The right to translation in criminal proceedings is inextricably linked to the principle of fairness of proceedings. Only if the person involved in criminal proceedings is aware of the criminal charges and the proceedings can they defend themselves effectively and play an active role in the proceedings. This requires that the accused be informed in an understandable manner about the criminal charges against them and about the content and significance of the proceedings.
2 The right to translation arises primarily from convention and constitutional law, which provide minimum guarantees. Article 5(2) of the ECHR guarantees that arrested persons shall be informed, within a reasonable time, in a language they understand, of the reasons for their arrest and of the charges against them. Furthermore, Article 6(3)(a) of the ECHR gives the accused the right to be informed as soon as possible, in a language they understand, of the nature and cause of the accusation against them in detail. Article 6(3)(e) of the ECHR also guarantees the accused the right to free assistance from an interpreter. The same provisions are also found in Article 14(3)(a) and (f) of the International Covenant on Civil and Political Rights (ICCPR). A right to translation also arises from Art. 32 para. 2 of the FC.
3 The earlier cantonal codes of criminal procedure already provided for a right to translation. This right was formulated in varying degrees of detail; for example, the code of criminal procedure of the canton of Zurich also contained a specific provision concerning witnesses and deaf-mute persons, while other codes of criminal procedure only contained an explicit provision relating to the accused. Since the entry into force of the CrimPC, the right to translation has been enshrined in Art. 68 in Chapter 8 under “General Rules of Procedure.” The same section also contains provisions on the oral nature of the proceedings and the language of the proceedings.
4 The right guaranteed by the CrimPC goes beyond that provided for in convention and constitutional law. It does not only apply to the accused or detained person. Based on the provisions of the CrimPC, other parties to the proceedings, such as witnesses and informants, are also entitled to translation (see III.A. below).
5 While Art. 68 CrimPC refers to cantonal proceedings and proceedings conducted by the federal criminal authorities, the right to translation in federal court proceedings is governed by Art. 54 BGG.
6 Further provisions concerning translations – in particular in the context of international service of documents – can be found in international agreements such as Art. 52 no. 2 of the Schengen Convention of 19 June 1990 (SDÜ), Art. 28 no. 2 of the Agreement of 26 October 2004 on cooperation between the Swiss Confederation, on the one hand, and the European Community and its Member States, on the other hand, to combat fraud and other illegal activities affecting their financial interests, and in Art. 15 of the Second Additional Protocol of November 8, 2001, to the European Convention on Mutual Assistance in Criminal Matters (ZPII EUeR).
II. Terminology and fields of application
7 Art. 68 CrimPC only uses the term translation. Translation is generally understood to mean written translation. However, Art. 68 CrimPC covers not only written translations, but also interpreting (oral translations). In this commentary, the term “translation” is used synonymously for written translation and oral interpretation.
8 The provision also covers language mediation in communication surveillance. This means that transcribed telephone calls and text messages or information and conversation content obtained through other (secret) surveillance measures are translated into the language of the proceedings. In this context, para. 5 of Art. 68 CrimPC is particularly important, which must also be observed when members of the police carry out the translation (see VII.C. below).
9 Translation is also required in a broader sense for speech- and hearing-impaired persons (see also Art. 143 para. 7 of the CrimPC, according to which speech- and hearing-impaired persons are to be questioned in writing or with the assistance of a suitable person). If necessary, a person who is proficient in sign language must be called in.
10 The same applies to illiteracy. The focus here is on translating or bringing documents to the attention of the person concerned, although in the case of parties represented by a lawyer, it is to be expected that the legal representative will take on this task. However, if the person concerned is not represented by a lawyer, it may be necessary to order an official defense.
III. Right to translation of persons involved in the proceedings (para. 1)
A. Personal and material scope
11 According to the wording of the law (para. 1), all parties to the proceedings are entitled to translation, i.e. not only the accused but also informants, witnesses, and other parties to the proceedings within the meaning of Art. 105 para. 1 CrimPC.
12 Legal counsel do not have a right to translation for themselves. According to Federal Supreme Court case law, lawyers are also expected to understand the official languages German, French, and Italian.
13 Para. 1 focuses on oral proceedings, i.e., interrogations. In the case of written submissions by foreign-language speakers, the involvement of an official defense counsel or free legal representative may be considered.
B. Target language
14 As far as possible, translations should be provided in the native language of the person concerned who is not proficient in the language of the proceedings. However, there is no absolute right to translation into the native language. Art. 68 CrimPC merely guarantees the right to translation into a language that the person concerned understands (cf. wording of para. 2). This means that translation into a third language that the person concerned understands is also possible. Whether translation into a third language is sufficient will depend in each specific case on factors such as whether there is a time constraint and, ultimately, how quickly a suitable person can be found to do the translation. If a translation into the native language of the person concerned cannot be ensured within a reasonable time, in practice the translation is made into a common third language such as English or French, even if the person concerned does not have a perfect command of that language. In our opinion, this is permissible as long as effective communication is guaranteed.
C. Mandating and assessing the need for translation
15 The right to translation applies from the first police interview. The respective proceedings management is responsible for calling in a translator, as is directly apparent from the wording of the law. This means that the public prosecutor's office is generally responsible in the preliminary proceedings and subsequently the court proceedings management within the meaning of Art. 61 CrimPC. The police are also authorized and obliged to call in a translator if necessary during police investigations. The head of the proceedings is also responsible for informing the accused of their right to translation at the beginning of the proceedings (cf. Art. 158 para. 1 lit. d CrimPC).
16 Translation is required if the person involved in the proceedings does not understand the language of the proceedings (cf. Art. 67 CrimPC) or cannot express themselves in that language (lack of active or passive language skills). The right of a foreign-language accused person to translation must be determined on the basis of their actual needs and the specific circumstances. The following criteria may be used: the subject matter of the proceedings, the complexity of the proceedings, and the nature of the procedural action. For example, a foreign-language witness who only has to identify a person will be able to make a statement even without the assistance of a translator, despite having limited language skills. The presiding judge assesses the need for translation and appoints a translator ex officio. A translator may also be appointed at the request of the person concerned. In addition, the person involved in the proceedings who requires translation, or their legal representative, has a duty to indicate any need for translation at an early stage. According to Federal Supreme Court case law, persons involved in the proceedings are also required to actively inquire about the content of a decision or to report to the authorities if they do not understand it, otherwise they are acting in bad faith.
17 The question arises as to how the presiding judge should assess the language skills of a person involved in the proceedings. As a rule, it should be readily apparent from the answers given by the person being questioned whether they have sufficient language skills. The presiding judge must be granted discretion in this matter, which they must exercise in accordance with their duties. However, sufficient language skills must not be assumed lightly. It is true that a case may appear to be relatively straightforward in terms of the facts. In case of doubt, however, a translator should be consulted, especially since every word is crucial in reaching a verdict and conceptual distinctions are generally of central importance in jurisprudence. If the person concerned has provided a self-assessment, this should be taken into account with a certain degree of caution. It should be borne in mind that criminal proceedings are associated with considerable stress for those involved and that any information provided on language skills may be influenced by other considerations relating to their position in the proceedings. For example, when assessing linguistic integration with a view to possible expulsion, the accused person's statements regarding their need for translation may be taken into account under certain circumstances.
D. Waiver of the use of a translator
18 According to para. 1, the use of a translator may be waived in exceptional cases. This is subject to the cumulative conditions that the case is simple or urgent, that the person concerned has given their consent, and that both the person conducting the proceedings and the person taking the minutes have a sufficient command of the foreign language.
1. Simplicity and urgency
19 Whether a case is simple is assessed on the basis of the circumstances of the individual case. The dispatch mentions the questioning of a foreign-language witness in criminal proceedings for an offense. However, the type of offense is not (alone) decisive. The complexity of the case and the legal or factual aspects of the proceedings must also be taken into account. A case is generally considered simple if summary proceedings are applied and the facts of the case are clear, for example because of a confession.
20 Urgency is assumed if the proceedings would be delayed to such an extent by the involvement of a translator that their conduct would be jeopardized. It is conceivable, for example, that a witness is to be questioned who is about to leave the country or be deported and there is not enough time to call in a translator. In practice, the exception is most likely to be applied in cases of provisional arrest.
2. Consent
21 Consent to waive the right to translation must be obtained from the person who, according to para. 1, sentence 1, is entitled to translation or who is required to participate in the proceedings. This does not refer to other persons who participate in the proceedings, for example on the basis of Art. 147 CrimPC.
22 The waiver of the right to a translator is only valid if the person concerned has been informed in advance of the essential points of the proceedings, i.e., the criminal charge, in summary proceedings, the consequences of not contesting the summary order, and the right to call upon an independent translator.
3. Language skills of the presiding judge
23 The third requirement is that both the presiding judge and the person taking the minutes must be proficient in the foreign language. Taken literally, this means that if a translator is not called in, a person taking the minutes must always be present in addition to the presiding judge. In our opinion, in cases where the presiding judge drafts the minutes themselves, it is sufficient for them to be proficient in the foreign language. The minutes themselves must generally be drafted in the language of the proceedings. However, essential statements must be recorded verbatim and thus in the language in which the person being questioned made their statement (see Art. 78 para. 2 CrimPC).
4. Restrictions
24 The exception should be used with restraint. It should be limited to individual procedural steps or procedural actions. In case of doubt, a translation must be provided.
25 It is problematic to dispense with the services of a translator in cases where members of the court perform the translation. In such cases, the person translating assumes a dual role, which can lead to problematic situations given that the recusal rules in Art. 56 lit. b CrimPC must be observed in the case of translators. This issue has hardly been discussed in case law to date. This is likely due to the fact that the question has rarely arisen in practice. Only the Cantonal Court of St. Gallen pointed out in a decision of August 24, 2017, that the dual role of judge/translator could be problematic (see also VII.C.).
IV. The accused person's right to translation (para. 2)
A. Scope of the right
26 The right to translation of the accused person is more extensive than that of the other parties to the proceedings. Para. 2 therefore contains more specific provisions in favor of the accused person. First, they are entitled to be informed immediately, either orally or in writing, of at least the essential content of the most important procedural steps in a language they understand. Essentially, the provision aims to ensure that the accused is informed of the allegations made against them. This also includes providing simple and “non-technical” information. At the beginning of the first interrogation, the accused must be informed in a language they understand that they may request a translator (Art. 158 para. 1 lit. d CrimPC), otherwise the interrogation may be deemed inadmissible (Art. 158 para. 2 CrimPC).
27 According to para. 2, the most important procedural acts must be translated. Unlike the right under para. 1, this right does not primarily relate to oral procedural acts. However, there is still no right to have all procedural acts and the entire case file translated. According to the dispatch, the principle of procedural fairness serves as a guideline for assessing the right to translation. Those procedural steps must be translated which the accused person needs to understand in order to ensure a fair trial and an effective defense. These include the decisive witness statements, the essential content of expert opinions and other relevant evidence, the indictment, the parties' submissions with the main motions, and the wording of the operative part of the decision and essential parts of the grounds for the decision. There is also a right to translation of the preliminary discussions with the defense, especially since an effective defense is hardly conceivable without preliminary discussions between the party and their legal representative.
28 Whether or not the accused is represented by a lawyer may also play a role in determining the scope of the right to translation. Any foreign language skills of the defense cannot, in principle, replace a missing translation. However, the scope of the translation may be smaller in such cases. The message stated that the accused person represented by a lawyer is not entitled to a translation of the entire judgment.
B. Right to translation in summary proceedings
29 The right to translation is particularly important in summary proceedings. In order for the accused to be able to decide whether to accept the summary order and the associated consequences, some of which may be far-reaching, it is essential that they understand the content of the summary order. According to Federal Supreme Court case law, there is therefore a right to translation of the operative part of the decision and the information on legal remedies in summary proceedings. However, it seems questionable whether the right to translation is satisfied if only the operative part and the information on legal remedies are translated. In our opinion, the right to translation also extends to other elements of the penalty order, such as the core elements of the facts of the case. In addition, the essential elements of the reasoning behind the decision must also be translated (see IV.A. above).
30 In practice, a translation can either be delivered in written form or the person concerned can be summoned to an oral hearing. On the other hand, the requirement of Art. 68 para. 2 of the CrimPC is not satisfied if the accused person is merely handed an information sheet with general information on the criminal (order) proceedings, which contains a reference to translation assistance. With regard to oral translation, the Federal Supreme Court has also specified that oral translation when the summary penalty order is handed over, while at the same time encouraging the accused to waive their right to appeal, violates the principle of procedural fairness. This deprives the accused of the opportunity to make use of the ten-day reflection period to calmly analyze the consequences of the summary penalty order after it has been served, to consult a lawyer if necessary, and to voluntarily waive their right to appeal. The burden of proof for proper service and translation lies with the prosecuting authorities. The lack of a translation of a penalty order does not constitute grounds for nullity.
31 If the information on legal remedies was wrongly not translated, the same case law applies as for decisions that were not properly served. The parties must not suffer any disadvantages as a result of the lack of translation. The time limit for appeal must therefore not be shortened. The aforementioned case law must also apply in the event of failure to translate the operative part of the decision. However, this is subject to the condition that the person concerned can invoke the protection of legitimate expectations and cannot be accused of procedural negligence.
V. Translation of files (para. 3)
A. Scope of application
32 Art. 68 para. 3 CrimPC regulates the right to have files translated. Art. 68 para. 3 CrimPC adopts the subdivision according to Art. 100 para. 1 lit. a–c CrimPC concerning the content of the file. The term “files” in Art. 68 para. 3 CrimPC refers to the proceedings and interrogation records as well as the files compiled by the criminal authority (cf. Art. 100 para. 1 lit. a and b CrimPC), which are to be distinguished from the files submitted by the parties (cf. Art. 100 para. 1 lit. c CrimPC). Information from foreign authorities or other authorities may also be considered as files to be translated.
33 With regard to the term “party” used in Art. 68 para. 3 CrimPC, reference should generally be made to Art. 104 para. 1 lit. a–c CrimPC. According to this, the accused, the private prosecutor, and, in the main and appeal proceedings, the public prosecutor's office are covered by the term “party.” E contrario, it can be inferred from this that files that are submissions from other parties to the proceedings – i.e., the injured party, witnesses, informants, complainants, or other persons affected by procedural actions – must be translated in accordance with para. 2 and 3 of Art. 68 of the CrimPC, if necessary.
34 The right to have files translated already applies in preliminary investigations, in which the accused must be provided with translations of those documents that they need to understand. This applies in particular to files and statements presented to the accused during questioning, as well as documents that the person concerned must sign, such as house search and seizure reports.
B. Obligations of the authorities
35 The obligation to translate the files is limited by the principle laid down in para. 68 (2) of the CrimPC, according to which there is no right to a complete translation of all procedural documents and files. This restriction is taken into account by the wording “to the extent necessary” used in para. 68 (3) of the CrimPC. As already explained, the limits are set by the principle of procedural fairness (above, I.).
36 In particular, a translation is not necessary if a document is written in a language that is understood by both the parties and the presiding judge.
37 It is questionable to what extent the accused person can request the translation of documents that are in a language that they understand but the court does not. The Federal Supreme Court has not made a final ruling on this issue. In a case where the complainant objected that the documents in his native language had not been translated into the language of the proceedings (French), it pointed out that there was no entitlement to a complete translation of all procedural documents and files. Any such request must be limited to the documents required under Art. 68 para. 3 of the CrimPC. Under certain circumstances, such a translation may be required in accordance with the principle of investigation.
C. Obligations of the parties
38 It follows a contrario from Art. 68 para. 3 of the CrimPC that it is in principle the responsibility of the parties to translate the files they submit into the language of the proceedings. The preliminary draft of the Swiss CrimPC of June 2001 (VE-StPO) still expressly provided for a corresponding regulation (cf. Art. 73 para. 2 VE-StPO).
39 If a submission is made by a party in a foreign language, it is not generally the responsibility of the authority to carry out the translation itself, and it is sufficient to set a deadline for the translation. In order to prevent excessive formalism, the criminal authority must grant an additional deadline for translation in the case of a submission that is not written in the language of the proceedings and is submitted within the deadline, unless it is satisfied with the document or has it translated itself. In the event of a rejection for correction or translation, the requirements are set out in Art. 110 para. 4 CrimPC. According to this provision, the party concerned must be informed in particular that the submission will be disregarded if it is not revised within the set deadline.
40 The limits of the parties' obligation to translate may arise from the principle of investigation and the right to an effective defense. As already explained, the authority does not, in principle, have to carry out the translation itself. However, a corresponding obligation on the part of the authorities may arise from the right to an effective defense, as the Federal Supreme Court has held in relation to a statement of appeal in cantonal proceedings by an appellant who was not proficient in the language of the proceedings and did not have the necessary means to have his statement of appeal translated. Furthermore, the principle of investigation may require that evidence not translated by the parties be taken into account if it appears relevant to the outcome of the proceedings.
VI. Victim's right to translation by a person of the same sex (para. 4)
A. Scope of the protective measure
41 Art. 68 para. 4 of the CrimPC is one of the protective measures provided for victims of crimes against sexual integrity (for further protective measures, see Art. 153 [Special measures for the protection of victims], Art. 169 para. 4 [right to refuse to testify for one's own protection or for the protection of close persons] and Art. 335 para. 4 CrimPC [composition of the court]). According to the wording of Art. 68 para. 4 CrimPC, the right to have a person of the same sex present does not apply absolutely, but, unlike Art. 153 of the CrimPC, is subject to the reservation of undue procedural delay. Such an exception should only be accepted with restraint. Undue procedural delay can be assumed in particular if the questioning of the victim is objectively important and urgent and the translation by a person of the same sex cannot be carried out within a reasonable period of time. In legal doctrine, with reference to Art. 144 CrimPC, it is suggested that, depending on the circumstances, a translator should be connected via video conference in order to guarantee the right.
B. Request by the victim
42 From a procedural point of view, it should be noted that the wording of the provision makes the right dependent on a request by the victim. This presupposes that the victim is aware that they can make such a request. With regard to the victim's rights to information, Art. 305 para. 1 of the CrimPC stipulates that the police and the public prosecutor's office must inform the victim comprehensively about their rights and obligations in the criminal proceedings during the first interrogation. For organizational reasons, it seems appropriate to provide advance information regarding the victim's right to translation by a person of the same sex if the presiding judge does not automatically call in a person of the same sex to provide translation. It is recommended that the presiding judge automatically call in a person of the same sex to provide translation during the victim's questioning if such a person is available.
43 With regard to the time limit within which an application must be made, different practices apply in the cantons, whereby forfeiture of the right is likely to be subject only to the proviso of abusive conduct or undue delay in the proceedings.
VII. Requirements concerning translators (para. 5)
A. Rights and obligations of translators
44 As parties to the proceedings, translators are entitled to the rights set out in Art. 105 ff. CrimPC and are subject to the same liability and criminal provisions as expert witnesses. The reference to the provisions on expert witnesses imposes the corresponding confidentiality obligations (Art. 73 CrimPC) on translators.
45 In particular, the translator must be informed of the criminal consequences of false translation (Art. 184 para. 2 lit. f CrimPC in conjunction with Art. 307 SCC) and the duty of confidentiality (Art. 184 para. 2 lit. e CrimPC in conjunction with Art. 320 SCC). If the criminal files do not indicate who produced the translated transcripts of telephone surveillance and whether the translators were informed of the criminal consequences of Art. 307 SCC, they may not be used against the accused according to Federal Supreme Court case law. Instructions and division of labor must be traceable. If the translated wiretap transcript does not meet these requirements, it may be re-examined by the court, for example by listening to the relevant conversations at the court hearing and translating them directly.
B. Requirements
46 With regard to the requirements to be met by translators, the CrimPC stipulates in general terms in Art. 183 that they must possess the necessary knowledge and skills.
47 In principle, no degrees, diplomas, or other certifications of expertise are required to qualify as a translator. However, not only very good knowledge of the source and target languages is required, but also social and, in particular, cultural skills, which influence the interpretation of the statements made by the person being questioned and thus the recording of the transcript. The interpreter must be able to translate the statements accurately in terms of content and understand idioms and allusions in their cultural context in order to faithfully reproduce the meaning of the statements.
48 It is left to the cantons, within the scope of their responsibility for the organization of the courts, to specify the requirements to be met by translators. The cantonal regulations vary greatly. In some cantons, there are lists of interpreters for the police, public prosecutors, and the judiciary, which allow for quality control, and courses are offered that can be completed as part of an accreditation process. The canton of Zurich has detailed regulations governing the provision of language services on behalf of cantonal judicial and administrative authorities, in particular an accreditation procedure for quality assurance.
49 Translators are subject to the grounds for recusal under Art. 56 of the CrimPC. Translators must also have the necessary independence and be neutral.
C. Translation by members of the police force
50 The Federal Supreme Court has dealt with the question of whether members of the police force can act as translators on several occasions. The use of members of the police force who are not themselves involved in the case as translators of wiretap transcripts is not prohibited in principle, provided that the necessary independence is maintained. According to Federal Supreme Court case law, police personnel conducting the interview (as well as the public prosecutor conducting the interview) cannot simultaneously act as translators if they have already been involved in the proceedings in another capacity. A deviation from this is only permissible under the conditions of Art. 68 para. 1 sentence 2 CrimPC. With regard to the instruction, the Federal Supreme Court has ruled that when police personnel are called in for translation purposes, it can be assumed that they are aware of the criminal consequences under Art. 307 of the SCC due to their training and activities, in particular as a result of their cooperation with court interpreters.
D. Anonymity of the translator
51 If there is reason to believe that the translator's participation in the proceedings could expose them or a person close to them to a significant risk to life and limb or other serious disadvantage, the presiding judge shall take appropriate protective measures in accordance with Art. 149 para. 1 CrimPC. Art. 149 para. 2 lit. a CrimPC provides in particular for the guarantee of anonymity.
52 The guarantee of anonymity must be approved by the compulsory measures court.
53 A blanket reference to the cultural milieu and environment of organized crime is not sufficient to meet the requirements of Art. 149 para. 1 of the CrimPC in order to prove serious indications of a concrete danger to the translator. Indications are required that provide concrete evidence of such a danger.
54 The Federal Supreme Court has ruled that the anonymity of the original translator would not justify removing the transcripts from the case file, as the recorded conversations were retranslated in a contradictory hearing in the presence of the parties.
VIII. Translation costs
55 Translation costs are part of the costs of the proceedings (Art. 422 para. 2 lit. b CrimPC). Costs of the proceedings incurred due to the accused person's foreign language skills cannot be imposed on that person (Art. 426 para. 3 lit. b CrimPC). This entitlement already arises from Art. 6 no. 3(e) ECHR. The accused may therefore not be required to pay translation costs even if they are found guilty and even if they are in a very good financial position. In contrast, the other parties to the proceedings may in principle be required to pay the translation costs. The private prosecutor may apply for free legal aid, which also includes exemption from procedural costs and thus from translation costs (Art. 136 para. 2 lit. b CrimPC in conjunction with Art. 422 para. 2 lit. b CrimPC).
56 The Federal Supreme Court has ruled that, with regard to documents that are translated not because of the accused person but because the prosecuting authority and the court require a translation, the convention guarantee (Art. 6 no. 3 lit. e ECHR) is not affected. In this case, the translation costs are generally to be borne by the convicted person. The Federal Supreme Court's case law outlined above has been codified in the provisions of Art. 422 para. 2 lit. b and Art. 426 para. 3 lit. b of the CrimPC.
57 In connection with the right to have investigative interviews with the defense translated, the question of who bears the costs arises. The defense must engage a translator for investigative interviews and submit a request for a cost approval. The approval of costs will depend on the specific circumstances, in particular the seriousness and complexity of the case, the possibility of engaging a defense attorney who is proficient in the foreign language, and the question of whether the fairness of the proceedings can be guaranteed without the involvement of a translator. If the (freely chosen) defense counsel themselves engage a translator for client meetings, they generally assume a cost risk.
58 The translator is entitled to reasonable compensation, whereby reference can be made to Art. 190 CrimPC in this regard.
IX. Legal remedies
59 If the presiding judge rejects a request for translation made by a person involved in the proceedings, this constitutes a procedural order within the meaning of Art. 65 CrimPC. The rejection of a request for translation can be challenged by means of a criminal procedural appeal (Art. 393 para. 1 lit. a CrimPC). If the decision is made by a court, it can, as a procedural order within the meaning of Art. 65 CrimPC, generally only be challenged with the decision on the merits, unless the person concerned suffers irreparable harm as a result. The rejection of a request for the involvement of a translator of the same sex in cases involving victims of crimes against sexual integrity may also be challenged by means of an appeal. The translator may also lodge a criminal appeal to defend themselves against a reduction in compensation. The decision of the appeal authority may be appealed to the Federal Supreme Court in criminal matters (Art. 78 ff. BGG), whereby the latter requires the assertion of irreparable harm in the case of appeals against interim decisions (Art. 93 para. 1 lit. a BGG).
60 Refusal to provide a translation constitutes a formal denial of justice, which means that, for example, the private prosecutor is entitled to appeal to the Federal Supreme Court in criminal matters on this point despite the lack of civil claims (Star practice). In proceedings before the Federal Supreme Court, it should also be noted that determining a person's language level is a question of fact, which the Federal Supreme Court reviews only with limited jurisdiction (Art. 97 para. 1 BGG).
X. Distinctions
61 The right to translation must be distinguished from the right to free legal representation and necessary or official defense. These rights are not identical, but may overlap.
62 According to Art. 130 lit. c CrimPC, the accused must be defended if they are unable to adequately protect their interests in the proceedings due to their physical or mental condition or for other reasons and the legal representative is unable to do so (necessary defense). In combination with other reasons, a lack of language skills can also justify a claim to necessary defense, according to the Federal Supreme Court. According to Federal Supreme Court case law, private plaintiffs with language difficulties in written proceedings may be appointed free legal counsel within the meaning of Art. 136 of the CrimPC, at least if the civil action and, in the case of victims, the criminal action is not futile.
63 Since the need for translation may also depend on whether a person is represented by a lawyer (above, IV.A.), it is clear that a clear separation between translation work and legal representation, as is sometimes demanded, is not always possible, nor is it necessary. Here, too, the needs of the persons concerned are very individual and depend on the specific case, and the question of whether a translation or free representation should be ordered must be decided with the necessary discretion and taking into account the principle of procedural fairness.
XI. Case studies
64 No right to the same translator:
In its judgment 1B_404/2012 of December 4, 2012, the Federal Supreme Court clarified that “compelling objective reasons” would argue against using the same translator for confidential instruction discussions between the defense and the accused and for formal hearings. These compelling reasons include attorney-client privilege, the requirement to establish the truth in court proceedings, and the avoidance of conflicts of interest. There is therefore no entitlement to the same person acting as the official translator and the translator for preliminary hearings. The aforementioned decision also states that it is the responsibility of the defense to provide a translator for communication with clients during preliminary hearings, whereby the court can provide a list of suitable translators.
65 Right to translation during a house search:
In its judgment 1B_564/2022 and 1B_569/2022 of February 14, 2023 (E. 3.3), the Federal Supreme Court had to assess – in proceedings conducted in French – whether the Office of the Attorney General should have called in a translator during a house search on the premises of a company, which it carried out in the presence of a French-speaking board member and the English-speaking managing director. The Federal Supreme Court took into account that the French-speaking member of the board of directors was present during the search, had taken note of the search warrant and, in particular, the instructions, and had translated and explained them to the managing director. It also pointed out that no translation had been requested and concluded that, under these circumstances, the foreign-language managing director could not claim that a translator should have been called in.
66 Timing of the translation of interviews:
In judgment 6B_1079/2022 of February 8, 2023, the right to translation was not considered to have been violated, even though the accused was not granted immediate translation during the questioning of parties to the proceedings. The interviews were only translated after the fact, and the accused was able to ask supplementary questions with the help of a translator. This approach could also be advantageous for the accused compared to simultaneous translation with the party's right to ask questions immediately following the questioning by the presiding judge, as it allowed them to concentrate on the relevant statements recorded in the minutes, have more time to prepare and discuss their supplementary questions with their defense, and that simultaneous translation during the questioning of the person being questioned by the presiding judge could lead to communication problems.
67 Translation by relatives during assessments:
Translation may also be necessary for the purpose of conducting a psychiatric assessment. In this context, the Federal Supreme Court – albeit in relation to an IV assessment – dealt with the question of whether relatives of the person being assessed could also be called upon to provide translation. It rightly rejected this and pointed out that translation by relatives was problematic due to bias and a lack of distance. Relatives would not be able to guarantee a neutral, complete, and truthful translation. Furthermore, relatives would not be able to guarantee the quality of translation required for the assessment. These considerations must also apply in criminal proceedings. Translation by relatives is therefore not permissible in psychiatric assessments, nor in other procedural acts.
68 Right to translation of the indictment:
According to Federal Supreme Court case law, the indictment must generally be translated in writing for the accused, although this right only extends to those charges in which allegations are made against the foreign-language accused. The Federal Court denied a violation of the right to translation and to be heard in proceedings conducted in German in the case of a French-speaking defendant who had been provided with translations of the (largely) identical draft indictments and who, due to the specific circumstances (in particular the detailed final hearings, his personal circumstances, his two German-speaking defense attorneys, and the detailed legal documents and pleadings before the court of first instance) was able to understand the essential content of the indictment and defend himself effectively against the criminal charges.
69 Time of translation of a judgment delivered orally:
Judgment 6B_719/2011 of November 12, 2012, was based on a case in which a person was convicted and the judgment was delivered orally but not immediately translated (orally). The convicted person was taken away by the police after the hearing before they could discuss their defense again. The convicted person only became aware of the content of the judgment when they were already back in prison. In this case, the Federal Supreme Court considered the right to translation to have been violated. However, it was deemed sufficient to record the violation of the right to translation in the written considerations of the judgment. It can be inferred from this that the accused person has, in principle, a right to oral translation of the operative part of the judgment and a brief statement of reasons when the judgment is announced orally.
XII. Outlook: Technical aids
70 In view of technological progress, the judiciary and law enforcement agencies must address the question of whether translation services can be provided in the future using technical aids and artificial intelligence or AI-based applications. It is conceivable that such systems could be used both in interrogations and oral proceedings and in the translation of documents.
71 It cannot be denied that the increasing availability of AI-based applications will reduce costs and, overall, increase the efficiency of the proceedings. On the other hand, there is a risk that other positive aspects of translation by a translator will be lost, at least in part. A translator can immediately point out and ask about any misunderstandings or ambiguities. It is also important to note that translators are also “cultural mediators” who can grasp and convey linguistic nuances in a cultural context. It is unclear to what extent artificial intelligence is already capable of correctly translating dialects, accents, or specific language usage. However, given the rapid pace of development, it can be assumed that technical feasibility will no longer be an obstacle in the future. Finally, there are also data protection concerns and questions about the protection of official secrecy, which must be guaranteed in AI applications.
72 The use of AI-based systems in oral translation is associated with further uncertainties. In particular, the question arises as to the procedure, i.e., whether a prior transcription in the foreign language or a direct translation is carried out and how this affects verifiability. When translating documents using AI-based systems, regional and cultural characteristics are generally less important, and existing translation programs are already able to handle this task well. In order to meet the requirements of a fair procedure, it is essential in all cases that AI-generated translations are checked by a human translator (human-in-the-loop [HITL] principle). The applications mentioned may only be used in a supporting role, for example for the pre-translation of documents. Finally, the use of AI-based systems by a translator must always be disclosed.
Recommended further reading
Capus Nadja/Bally Elodie, Intercepter avec des interprètes, Revue pénale Suisse, RPS 138/2020, S. 345-365.
Guisan Alexandre, La renonciation écrite du prévenu à faire opposition à l’ordonnance pénale, Arrêt TF 6B_657/2022 du 20 septembre 2023, Crimen.ch, 22.11.2023.
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