Absence of an interpreter during police questioning
II. RELEVANT DOMESTIC LAW 35. The Code of Criminal Procedure in force at the relevant time did not contain any provision prohibiting access to an interpreter in police custody. 36. The Rules concerning the arrest, custody and questioning of suspects, as in force until 1 June 2005, provided in Article 12 ( d), subparagraph 6, that the police custody register had to indicate whether an interpreter was present during the interview and, if so, the interpreter ’ s name and signature was required. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION FOR LACK OF ASSISTANCE OF AN INTERPRETER IN POLICE CUSTODY 37. The applicant complained that there had been no interpreter to assist her while she was in police custody and that this had entailed a violation of her right to a fair trial within the meaning of Article 6 §§ 1 and 3 ( e) of the Convention, provisions which read as follows : “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] tribunal ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.” 38. The Government contested that argument. A. Admissibility 39. The Government argued that the applicant should have submitted her complaint to the Court within six months after the end of her police custody, given that, in their opinion, there was no effective or appropriate remedy by which she could have had her complaint examined. 40. Should the Court not agree with their argument about the lack of a remedy, the Government asked it to declare the complaint inadmissible for failure to exhaust domestic remedies, firstly because the applicant had not raised the complaint during the domestic proceedings and, secondly, because the case was still pending before the domestic courts at the time she lodged her application. 41. As to the argument that the applicant had not complied with the six-month period allegedly running from the end of her police custody, the Court noted that the use of remedies, such as an appeal on points of law, could have enabled the applicant to obtain redress for the defect which, in her submission, had vitiated the proceedings, by obtaining a ruling either that the incriminating statements made during her police custody should be excluded or that she should not be convicted. In that connection, the Court would refer to its settled case-law to the effect that, following an acquittal or the quashing of a conviction, the applicant cannot be considered a “victim” of a violation of the rights guaranteed by Article 6 of the Convention ( see Bouglamé v. Belgium ( dec. ), no. 16147/08, 2 March 2010, and the numerous references therein ). An appeal on points of law was therefore one of the remedies to be exhausted and the applicant acquired victim status only once her appeal on points of law had been dismissed and her conviction had become final. It was thus on 31 October 2006 that the six-month period began to run and not, as the Government argued, at the end of her time in police custody. 42. As to the assertion that the applicant had not submitted her complaint to the domestic courts, the Court observes that, in her appeals on points of law, she had expressly complained about the use by the Assize Court of the statement obtained without the assistance of an interpreter while she was in police custody ( see paragraphs 29 and 33 above ). 43. As to the objection that domestic remedies had not been exhausted, on the grounds that the Court of Cassation had not yet ruled on the applicant ’ s appeal at the time the application was lodged, the Court observes that the conviction has in the meantime become final and that all domestic remedies have been exhausted. It would moreover note that this was already the case on the date when notice of the application was given to the Government. 44. In conclusion, the three objections raised by the Government are unfounded and must be dismissed. 45. Furthermore, finding that no other ground for declaring the complaint inadmissible has been established and that it is not manifestly ill-founded, the Court declares it admissible. B. Merits 46. The applicant complained that she had not been assisted by an interpreter when questioned by the gendarmes while she was in their custody and argued that the statement taken in those circumstances constituted illegally obtained evidence which should therefore have been excluded by the trial court. 47. The Government argued that the applicant had not shown how the absence of an interpreter during her police custody had impaired her right to a fair trial, as when she had subsequently reiterated her statement to a judge, an interpreter had then been present. The Government further argued that the applicant had been assisted by an interpreter throughout the remainder of the proceedings. 48. Reiterating the finding in its case-law that the requirements of paragraph 3 (e) of Article 6 are to be seen as particular aspects of the right to a fair trial guaranteed by paragraph 1, the Court will examine the complaint under both provisions taken together ( see, for example, Valentini v. Italy ( dec. ), no. 45003/98, 18 May 2000, or Pala v. France ( dec. ), no. 33387/04, 30 January 2007). 49. The Court further reiterates that paragraph 3 (e) of Article 6 guarantees the right to the free assistance of an interpreter. That right applies not only to oral statements made at the trial hearing but also to documentary material and the pre-trial proceedings. This means that an accused who cannot understand or speak the language used in court has the right to the free assistance of an interpreter for the translation or interpretation of all those documents or statements in the proceedings instituted against him which it is necessary for him to understand or to have rendered into the court ’ s language in order to have the benefit of a fair trial ( see Luedicke, Belkacem and Koç v. Germany, 28 November 1978, § 48, Series A no. 29). Furthermore, the interpretation assistance provided should be such as to enable the accused to have knowledge of the case against him and to defend himself, notably by being able to put before the court his version of the events ( see Güngör v. Germany ( dec. ), no. 31540/96, 17 May 2001). 50. Furthermore, like the assistance of a lawyer, that of an interpreter should be provided from the investigation stage, unless it is demonstrated that there are compelling reasons to restrict this right ( see, to that effect, Diallo v. Sweden ( dec. ), no. 13205/07, § 25, 5 January 2010). 51. In the present case, the Court would first observe that it is not in dispute that the applicant ’ s level of knowledge of Turkish rendered necessary the assistance of an interpreter. Both the District Court and the trial court decided that she needed an interpreter. As the Government never submitted argument to the contrary, the Court finds this point established. 52. The Court further notes that, while the applicant enjoyed the assistance of an interpreter when she was examined by the judge responsible for deciding whether she should be remanded in custody, this had not been the case during her questioning by the gendarmes, when she had stated that she had found the impugned document in the prison waiting room, thus admitting that a document had indeed been found in her possession. 53. The Court has already had occasion to emphasise the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained at this stage may be decisive for the subsequent proceedings ( see, to that effect, Salduz v. Turkey [GC], no. 36391/02, § 63, ECHR 2008). It should be pointed out that an individual held in police custody enjoys a certain number of rights, such as the right to remain silent or to be assisted by a lawyer. The decision to exercise or waive such rights can only be taken if the individual concerned clearly understands the charges, so that he or she can consider what is at stake in the proceedings and assess the advisability of such a waiver. 54. The Court takes the view that, as the applicant was not able to have the questions put to her translated and was not made aware as precisely as possible of the charges against her, she was not placed in a position where she could fully assess the consequences of her alleged waiver of her right to remain silent or her right to be assisted by a lawyer and thus to benefit from the comprehensive range of services that can be performed by counsel. Accordingly, it is questionable whether the choices made by the applicant without the assistance of an interpreter were totally informed. 55. The Court finds that this initial defect thus had repercussions for other rights which, while distinct from the right alleged to have been breached, were closely related thereto and undermined the fairness of the proceedings as a whole. 56. While it is true that the applicant enjoyed the assistance of an interpreter when she was brought before a judge following her police custody, the Court is of the opinion that this fact was not such as to cure the defect which had vitiated the proceedings at their initial stage. 57. Furthermore, the Court observes that the judge apparently failed to verify the skills of that interpreter, who was simply a member of the applicant ’ s family waiting in the corridor ( see, mutatis mutandis, Cuscani v. the United Kingdom, no. 32771/96, § 38, 24 September 2002, and paragraph 19 above ). 58. Moreover, the Court notes that the impugned statement was not excluded by the trial court. Even though the conviction was based on a number of factors, it is nevertheless established that the statements obtained by the gendarmes without the assistance of an interpreter were also relied upon when the applicant was found guilty. 59. In conclusion, having regard to its consequences for the fairness of the proceedings as a whole, the failure to provide the applicant with an interpreter while she was in police custody entailed a violation of Article 6 § 3 ( e) of the Convention taken together with Article 6 § 1. II. OTHER ALLEGED VIOLATIONS 60. Relying on Article 5 of the Convention, the applicant complained about the length of her detention on remand and alleged that she did not have a remedy by which to obtain an examination of its lawfulness, with the possibility of then being released. 61. In addition, relying on Article 6 of the Convention, the applicant argued that the use by the judges, in the reasoning given for her conviction, of the statement she had given to the gendarmes, constituted a breach of her right to be presumed innocent. 62. Under Article 14 of the Convention, she also contended that she had been the victim of a violation of Convention rights on account of her ethnic origin. 63. Lastly, she argued that she did not have a domestic remedy, within the meaning of Article 13 of the Convention, by which to submit her complaints. 64. Having regard to all the evidence in its possession, and in so far as it has jurisdiction to examine these allegations, the Court finds no appearance of a breach of the provisions of the Convention. 65. Accordingly, it declares these complaints inadmissible. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 66. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 67. The applicant claimed 20, 000 euros (EUR) in respect of the non-pecuniary damage she alleged to have sustained. 68. She also claimed EUR 2, 500 for the costs and expenses she had incurred before the domestic courts, EUR 5, 075 for the cost of her representation before the Court, and EUR 298 for the translation expenses in support of which she submitted invoices. 69. The Government disputed those claims, which they found excessive, and asked the Court to reject them. 70. The Court finds that it is appropriate to award the applicant EUR 1, 500 in respect of non-pecuniary damage. 71. The Court takes the view that, in circumstances such as those of the present case, a re-trial or the reopening of the proceedings, at the request of the person concerned, represents in principle an appropriate means of redress for the violation in question ( see Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003). 72. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred, and are reasonable as to quantum. In the present case, and having regard to the documents in its possession and its case-law, the Court finds it reasonable to award the applicant EUR 1, 300 in respect of all costs and expenses. 73. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been a violation of Article 6 § 3 (e) (right to the assistance of an interpreter) taken together with Article 6 § 1 of the Convention. It found in particular that, without the possibility of having the questions put to her interpreted and of forming as accurate an idea as possible of the alleged offences, the applicant had not been put in a position to appreciate fully the consequences of waiving her right to keep silent and the right to legal assistance.