Authors: Loredana Cristea – Associate and Răzvan Ionescu, Senior Associate
“The European Convention on Human Rights is a living instrument which must be interpreted in the light of present day conditions. ”
Article 6 of the European Convention of Human Rights guarantees that “everyone charged with a criminal offence has, in particular, the right to be informed promptly in a language which he understands and, in detail, of the nature and cause of the accusation against him”. Thus, by reference to its case law, contraventions fall within the scope of criminal charges and, as such, the sanctioned person is also afforded the guarantees laid down in art. 6 of the Convention, which forms part of the national law and takes precedence over it, according to art. 11 para. (2) and art. 20 para. (2) of the Constitution of Romania. Moreover, the national judge acting as first judge of EU law is required to apply the more favourable provisions of the ECHR.
The question we are asking ourselves hereby is whether it can be considered that, whenever the person sanctioned by a contravention report does not understand the Romanian language, it is mandatory to inform him/her of the nature and cause of the accusation against him/her as soon as possible through an interpreter. Would this be a disproportionate burden for the State, given that such a procedure would require the allocation of additional resources to achieve this goal? How far should this guarantee go so that the interested parties do not abuse this right?
- Application of criminal law guarantees to contraventions
It is already accepted in the majority of national doctrine and case law that, as far as contraventions are concerned, the guarantees that must be observed relate to the requirements of art. 6 of the ECHR, applicable in the criminal sphere.
According to the conclusions of the Judgement of 4 October 2007, in the case of Anghel v. Romania, rendered by the European Court of Human Rights, Section I-chamber, it was considered that although the contravention has an extra-criminal nature under the Romanian domestic law, it falls within the scope of the autonomous European notion of “criminal”, so that Article 6 of the European Convention on Human Rights concerning the right to a fair trial applies.
Thus, according to the case law of the European Court of Human Rights, contraventions fall within the scope of criminal charges, e.g.: - in the case of Öztürk v. Germany, the Court examines the criminal nature of the contravention and holds that a possible distinction between contraventions and offences in the domestic law of the signatory States to the Convention cannot have the effect of removing a category of acts from the scope of Art. 6 of the ECHR, which guarantees the right of an individual to a fair trial; and in the case of Kadubec v. Slovakia, the Court holds that even if a contravention is not classified as criminal by the domestic law of a signatory state, however, the regulations of the domestic law of the respective state have a relative, not absolute, value. Moreover, according to the Court’s reasoning, the lack of seriousness or the absence of any significant consequences of the applicable sanctions are not sufficient to divest the contravention of its criminal character (see Öztürk, para. 54, and Huseyin Turan, para. 20).
- Right of defence. The obligation to inform the offender of the accusations against him/her in a language which he/she understands
In the case where, despite being a foreign citizen and not speaking Romanian, the offender received a fine in violation of his/her right to be informed promptly in a language which he/she understands of the nature and cause of the accusation against him/her, the opinion of certain courts of law is that this affects (i) the right of defence, (ii) the right to a fair trial and (iii) the principle of equality of arms.
The sanction applied for violation of these rights is the nullity of the contravention report, and the fact that the sanctioned person had minimal knowledge of Romanian is irrelevant as long as he/she is not a native speaker of Romanian.
- Therefore, in the case where the inspection body draws up a contravention report for an act falling under the notion of criminal charge, and the sanctioned person, who is present when the report is drawn up, does not speak Romanian, he/she has the right to a translator that informs him/her of the act for which he/she is punished, the relevant costs being borne by the State. Compliance with this guarantee is mandatory as it constitutes a requirement for ensuring the right of defence.
- “On the other hand, even if it had been proved that the offender has minimal knowledge of Romanian (although, according to his assertions, he attends the courses of the faculty in which he is enrolled in French) the mandatory nature of the requirement to appoint an interpreter cannot be removed in any way, as long as the offender is not a native speaker.
(..)Given that the purpose of the provisions of art. 6 of the ECHR is to guarantee that the fundamental rights of citizens are observed and to ensure that the principle of equality of arms is met, the illegality of the document issued in violation of these mandatory requirements cannot be cleared in any way. The contravention report issued in violation of these mandatory requirements is absolutely null.”
Furthermore, some of the courts have considered that the issuer of the report should prove the fact that it ensured the participation of an interpreter when the contravention was applied, the burden of proof being incumbent upon the said issuer.
- “Although there is no proof that the claimant does not speak Romanian, the Tribunal holds that, since the issues of the claimant not knowing Romanian and of not having been provided with a translation of the report before the signing thereof have been raised, the respondent should have proven that it had provided an interpreter when the contravention was ascertained and the report was drafted, which in the case at hand was not achieved. (…)
However, in this particular case, although the claimant did not speak Romanian, he/she was given a fine in violation of his/her right to be informed, in a language which he/she understands, of the nature and cause of the accusation against him/her.”
Last, but not least, in what concerns the sanction applied, some courts deemed that such sanction is subject to absolute nullity deriving directly from the breach of art. 6 of the ECHR, the obligation to concretely and effectively ensure the right of defence being an imperative requirement.
- “Under such circumstances, the control body is even more compelled to question the fairness of the drafting of the report and must ensure the presence of an impartial person who would assist the foreign individual throughout the inspection and in the preparation of the contravention report, being irrelevant whether during the inspection the individual has or has not shown difficulties in understanding Romanian.
Given that the purpose of the provisions of art. 6 of the ECHR is to guarantee that the fundamental rights of citizens are observed and to ensure that the principle of equality of arms is met, the illegality of the document issued in violation of these mandatory requirements cannot be cleared in any way.
The report finding the contravention and issued in breach of these imperative requirements is subject to absolute nullity.”
Other courts hold that, since there is a cause for relative nullity, it is the offender who must prove that he/she has suffered a damage, especially since, as the courts consider, he/she could address all his/her defences in the contraventional claim.
- “This signifies that the annulment of the report under such circumstances shall be ordered only if the damage caused to the offender cannot not be remedied by other means than the annulment of the act. But in the case at hand, the claimant, acting by proxy, filed a contraventional claim against the sanctioning act, was able to prepare in due time his/her defence and had the possibility to bring evidence before the court against those held against him/her in the challenged act. Consequently, the court cannot hold that the damage could only be remedied by the annulment of the act.”
In a contrary position, the Bucharest Tribunal holds that the right of defence must be observed throughout the entire proceedings: “[T]hese rights must be observed by the inspection body, when it prepares the contravention report, and not just by the court, after the offender challenges the respective report”.
From our perspective, the guarantee that a right shall be applied may not be conditioned by administrative aspects pertaining to the concrete application, and thus the right provided and safeguarded by the ECHR must be applied concretely and effectively. The fact that this would generate costs or certain additional efforts for the competent bodies is of no relevance in the context of the observance of the right provided by art. 6 of the ECHR, which must be a concrete and effective right. In the context of the technological development, an interpreter who can inform the offender of the accusation against him/her could be provided by audio/video means, and not necessarily and mandatorily by his/her physical presence in a certain place for this purpose.
Not informing the offender in a language that he/she speaks may render futile the right of defence, since the offender cannot react to what is happening to him/her. Independent of the fact that the offender has the possibility of having his/her right of defence exercised before a court of law, we believe that this does not exclude the obligation of the authorities applying the sanction, to secure this right concretely, this also being the position held by the courts of law.
Observing, however, that in reality the courts of law apply different solutions in what concerns the obligation to provide an interpreter for the persons who do not understand Romanian and the validity of the contravention report executed in breach of this obligation, we deem that the High Court of Cassation and Justice should intervene and clarify this matter of law.