Kamasinski v Austria (Inadequate interpretation in criminal proceedings) (Series A, No 168 Application No 9783/82) EUROPEAN COURT OF HUMAN RIGHTS (1991) 13 EHRR 36, 19 DECEMBER 1989

FACTS:

The applicant filed this suit alleging violations of Articles 6, 13, and 14 during his criminal proceeding that resulted because he could not speak German. The applicant alleged that many aspects the criminal proceedings failed to cater to his inability to speak German. Specifically, he complained about the inadequate legal and interpretative assistance that he received during all stages of the criminal proceeding; namely: his first trial as well as the subsequent appeals

The Court held that the Austrian authorities violated Article 6(1) because the factual inquiry carried by the Austrian courts was unilateral in nature and the applicant was unable to protect his interests.

1. Right to fair trial: legal assistance (Art 6(1) and 3(c)).

Mere appointment of defense counsel by a court does not satisfy the requirements of Article 6(3)(c). On the other hand, a state may not be held responsible for every shortcoming of a legal aid lawyer. Policy interests in protecting the independence of the legal profession from the state requires that competent bar exists. Therefore, national authorities should not intervene unless a legal aid lawyer manifests obvious inadequacies in representing a client.

2 Right to fair trial: interpretation and translation, duty to inform defendant of 'accusation,' interpretation charges (Art 6(1) and (3)(a), (b), (d) and (e)).

Defendants have the right to free assistance of an interpreter under Article 6(3)(e). That assistance relates to both oral statements made at the trial and to documents pertaining to the dispute. A defendant should have enough evidence to allow him to defend himself and/or protect his interests during an adjudication. The obligation of the competent authorities is not limited to the appointment of an interpreter but extends to judgment over the competence of a specific interpreter

Although Article 6(3)(a) does not specify the type of information that should be given to a defendant, special attention should be given to the notification as well as to indictment of a defendant.

In this case the interpretation was primarily consecutive summaries. However, neither this insufficiency not the lack of any written translation will lead to a violation of Article 6(3)(d) or (e).

3. Right to fair trial: nullity proceedings, grounds, factual enquiry (Arts 6(1) and 14).

It is an inherent part of a 'fair hearing' in criminal proceedings that the defendant should be given an opportunity to comment on evidence obtained with regard to disputed facts even if the facts relate to a point of procedure. The Supreme Court undertook an enquiry in the nullity proceedings to obtain evidence from the presiding judge of the trial court as to the degree of interpretation provided. Neither the applicant nor his counsel was given notice of this inquiry; nor were they told of the results of the inquiry. In the circumstances the Supreme Court failed to observe the principle that contending parties should be heard. [102]

4. Right to fair trial: attendance at appeal hearing (Art 14 in conjunction with Art 6).

Personal attendance of the defendant does not take on the same crucial significance in an appeal hearing as it does for the trial hearing. This is an area where the national authorities enjoy a margin of appreciation. Having considered the special features of the appeal procedure before the Supreme Court and the particular circumstances of the applicant, the Court concluded that, even assuming that the applicant was in a comparable position to appellants at liberty or the 'civil parties' in his own case, the national authorities had good reasons for believing that there was objective and reasonable justification for the difference in treatment with regard attendance at appeal hearing. [104]-[108]

The following cases are cited in the judgment:

1. ALLAN JACOBSSON v SWEDEN (1990) 12 EHRR 56.
2. ARTICO v ITALY 3 EHRR 1.
3. BELGIAN LINGUISTIC CASE (No 2) 1 EHRR 252.
4. BROGAN v UNITED KINGDOM (1989) 11 EHRR 117.
5. COLOZZA v ITALY (1987) 7 EHRR 516.
6. DELCOURT v BELGIUM 1 EHRR 355.
7. DUDGEON v UNITED KINGDOM (Art 50) (1983) 5 EHRR 573.
8. EKBATANI, judgment of 26 May 1988, Series A, No 134.
9. FELDBRUGGE v NETHERLANDS (1986) 8 EHRR 425.
10. H v FRANCE (1990) 12 EHRR 74.
11. KOSTOVSKI v NETHERLANDS, judgment of 20 November 1989, Series A, No 166.
12. LUEDICKE, BELKACEM AND KOC v GERMANY 2 EHRR 149.
13. MARCKX v BELGIUM 2 EHRR 330.
14. MONNELL AND MORRIS v UNITED KINGDOM (1988) 10 EHRR 205.
15. OLSSON v SWEDEN (1989) 11 EHRR 259.
16. RASMUSSEN v DENMARK (1985) 7 EHRR 371.
17. SOERING v UNITED KINGDOM (1989) 11 EHRR 439.

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