Interpreter's Participation in Criminal Proceedings (Historical and Comparative Legal Analysis of Domestic and Foreign Legislation)

Alontseva Elena Yur'evna PhD in Law Associate Professor of the Department of Criminal Procedure at Vladimir Kikot Moscow University of the Ministry of Internal Affairs of Russia 117437, Russia, g. Moscow, ul. Akademika Volgina, 12 Alontseva.alena@yandex.ru Other publications by this author

 The criminal procedure of the Russian Federation has as its purpose the protection of the rights and freedoms of persons involved in the sphere of criminal procedural activity.

Among the basic rights in the modern conditions of existence of our multinational state, the right to use the native language should be highlighted. The legal prescriptions of the Constitution of the Russian Federation and, in turn, the norms of criminal procedure legislation establish the rule of the language of criminal proceedings. According to which, the requirement is fixed that, in cases where a person who is a suspect, an accused defendant, as well as another participant in criminal proceedings, does not speak the language of legal proceedings, they must be provided with an interpreter. The provisions of the current Criminal procedure law have a number of imperfections in terms of legislative regulation of the participation of an interpreter in criminal proceedings. Within the framework of this article, it is supposed to consider the problems of the interpreter's participation in criminal proceedings. The need to consider this issue within the framework of a scientific article seems important and relevant due to the fact that the procedural status of an interpreter does not contain the necessary list of rights and obligations that would correspond to his role in criminal proceedings, and one of the reasons is the complexity of law enforcement in terms of determining the candidacy of an interpreter, his involvement in criminal proceedings business. In this connection, for the most effective improvement of the norms of the law establishing the rights and obligations of the translator, the procedure for his involvement in the case, it is necessary to study the problems of the translator's participation in the historical experience of domestic legislation, analysis of international normative legal acts, comparison with the foreign legislation of individual states, and representatives of various legal families (for example, Great Britain, France, Germany, since the scope of one article does not allow us to consider foreign experience most extensively). The object of the study is social relations arising in connection with the participation of an interpreter in criminal proceedings. The subject of the study of this article are the provisions of the criminal procedure law related to the principle of the language of criminal proceedings and regulating the legal basis for the participation of an interpreter in criminal proceedings, as well as the scientifically-based positions of scientists of the processualists, the problems of insufficient regulation of determining the legal status and participation of an interpreter are identified, the issue of the appearance of an interpreter in criminal proceedings is examined in a historical context, a comparative analysis is carried out. analysis of foreign legislation in criminal proceedings. The work uses general scientific and private scientific methods, namely: system-structural, comparison, generalization, logical and legal analysis, historical. Previously, hotel issues of comparative legislation were studied by other authors on the example of some CIS countries, or the issues of the emergence of the institute of translator in domestic legislation were considered separately. However, the lack of dynamics of changes in the status of the translator and his procedure for participation in criminal proceedings require a statement of this fact, taking into account the historical and legal research proposed by the author within the framework of this study and a comparative study of the legislation of foreign states with the legislation of the Russian Federation, which creates the ground for rethinking the role of the translator and confirms the possibility of improving the procedure for involving and participation of the translator in criminal proceedings, generalization of the experience of other States, which can be taken into account to determine the main provisions aimed at improving procedural and law enforcement practice.

In Russia, the history of translation, as a whole, as a process of carrying out activities to explain the meaning of a text in one language and creating an equivalent text in another language, originates in Ancient Russia. The first "translators" who appeared on the territory of our state were the monks Cyril and Methodius, who created the alphabet, later called "Cyrillic", and, subsequently, translated prayers, Christian books and other texts into the Old Slavic church language. In the 14th - 16th centuries .. In Russia, the need for translators has increased significantly due to the development of trade and industrial relations and the recruitment of foreign military, pharmaceutical and other specialists to the tsarist service. Then the most notable continuation of the story of the appearance of the translator was during the reign Peter I. Under Peter I, the first association of translators appeared. It was established at the Academy of Sciences in 1735 and was called the "Russian Assembly" ^{[3, p. 18]}. The functions of this assembly included the duty not only of official translations, but also the training of qualified translators for service in the state. The further development of the ancient Russian state took place within the framework of relations of a political and foreign policy nature and required the translators to take the oath. This order existed under Catherine II. At this time, the field of translations has also expanded significantly. In criminal proceedings, translators are mentioned in the Statute of Criminal Proceedings of 1864 (Article 579) – "if any of the defendants or witnesses does not understand Russian, then the chairman of the court appoints an interpreter from among the quality of reliable witnesses to the judicial investigation." The Charter also established the procedure for summoning an interpreter, swearing him in and the procedure for recusal (Articles 730-731). 

Further, during the time period of the creation and development of our state after 1917, when the previous legislation ceased to apply, we will analyze the norms of the criminal procedure law on the exercise of the right to use the native language and the participation of an interpreter in this. First of all, it should be noted that the Constitution of the USSR of 1936 and the Law of the USSR "On the Judicial System of the USSR, the Union and Autonomous Republics" of 16.08.1928 contained a provision on the right to conduct legal proceedings in Russian and the language of the Union republic, which is part of the state.

The translator as a participant in criminal proceedings is mentioned in the Criminal Procedure Code of the RSFSR of 1923. According to which the proceedings are conducted in Russian or in the language of the majority of the population of the locality. The law provided for the applicant's right to submit an application in his native language. The Code of Criminal Procedure of the RSFSR establishes the rule that the court is obliged to provide an interpreter to the accused, the victim, the witness and the expert, if they do not speak the language of the proceedings. In addition to interpretation, the interpreter translated the documents and the indictment that were to be served. At the same time, the circle of persons to whom the court provided an interpreter solely on its own initiative was quite narrow. The Code of Criminal Procedure of the RSFSR of 1960, adopted later, fixed the duties of an interpreter for the immediate, as soon as possible, appearance of an interpreter at the police station for the production of the translation entrusted to him ^{[4, p.592]}.The rule on the use of the native language, at the same time, began to apply to all participants in criminal proceedings.  The duties of the interpreter included both actions to translate the testimony of a person who does not speak the language of the proceedings sufficiently, and the requirements of officials to him, as well as the translation of procedural documents and the information contained therein. In addition, the translator was warned about responsibility in case of non-appearance of the latter, as well as for a deliberately false translation. The translators were participants in the trial. In addition, the translator's duties included the translation of testimony, statements, documents announced at the trial, as well as orders and court decisions for persons who do not speak the language of the proceedings. Subsequently, when passing sentence, this sentence was read by an interpreter in the defendant's native language or in another language that the defendant knew. In the current Code of Criminal Procedure of the Russian Federation of 2001, the translator is another participant in criminal proceedings, endowed with a certain range of rights and obligations. There was no significant change in the status and procedure of the interpreter's participation. An interpreter is involved in criminal proceedings by an investigator, an inquirer or a court and is determined from among persons who are fluent in the language and are not interested in the outcome of the case (Article 169 of the Code of Criminal Procedure of the Russian Federation). The legislator does not determine how the competence of the person invited as an interpreter can be established and what the competence of the person is – what professional characteristics or qualities he should be endowed with. 

The authors of scientific research have repeatedly drawn attention to the lack of a procedure for involving an interpreter, the definition of criteria for assessing his competence, the quality of translation and its compliance with the content of translated documents or actions, cases of recusal, and in this regard, the need for changes in criminal procedure legislation. Let's look at some of them. It is necessary to agree with Bunova I. I., who justifies the need to develop a mechanism for testing the translator, whether he has any diploma confirming the qualification ^{[1, p. 8]}. We believe that this information should be reflected in the resolution on the involvement of an interpreter. In the continuation of the discussion, Volosova N.Yu., Shmeleva N. S. believe that the problem of determining the competence of an interpreter is the most difficult and Article 169 of the Code of Criminal Procedure of the Russian Federation, which imposes this duty on persons conducting legal proceedings, is not feasible due to the lack of an established procedure ^{[2, p.130]}. In this regard, we believe that the participation of an interpreter in criminal proceedings is currently determined primarily by his competence. However, in our opinion, it is impossible to agree with Bunova I. I., who proposes to interrogate the alleged translator as a witness in order to establish his competence ^{[1, p. 11]}, since in this case the transformation of his status is unacceptable and his own assessment of his knowledge and competence is controversial.

The main emphasis in determining competence is placed on fluency in the language from which the translation is to be made. However, we believe that this is extremely insufficient. The orientation of this candidate in legal terminology is necessary. The decision to check the fluency of the language by the investigator is not formalized in a procedural manner. We believe that in this case it is necessary to include in the decision on the appointment or admission of an interpreter, information about knowledge and understanding of legal terms, experience in such translation, and then explain to the translator the complex of his rights and obligations, including the consequences of a deliberately false translation and cases of his refusal to participate in the case. Of course, this will not exclude cases of participation of an incompetent translator. The consequences that the incompetence of the translator will entail, first of all, are that the constitutional rights of citizens may be violated. And entail the recognition of evidence obtained with the participation of an incompetent translator as inadmissible, as well as entail the cancellation of the court verdict. This conclusion also follows from the analysis of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 31.10.1998 No. 8 "On certain issues of application by courts of the Constitution of the Russian Federation in the administration of justice", according to which the inadmissibility of proof is directly due to violation of the rights guaranteed by the Constitution of the Russian Federation. It also explains the obligation of the court to ensure that the participant in the trial has the right to speak, make petitions, and make a statement in his native language. We believe that the violation will be not explaining the right to have an interpreter and not providing an interpreter, even if the person speaks Russian, but has another native language - the national one.

In order to create prerequisites for reflection and properly resolve these problems, it is necessary to study the legislation of other States in the field of participation of an interpreter in criminal proceedings. Thus, according to UK law, the right to an interpreter is an integral part of the right to a fair trial ^[5]. This right is implemented as a principle of common law, since the suspect must understand what he is accused of, and must also be able to defend his rights and defend his interests. This competence is also enshrined in the European Convention on Human Rights ^[6]. Currently, the services of an interpreter are provided in police stations, courts through hiring by the Ministry of Justice.

In cases where a suspect or witness requires an interpreter, police officers and detectives organize their presence during the proceedings. The role of an interpreter at a police station is regulated by the Police Code. Any testimony of a witness or suspect received from him by an interpreter must be translated into English and the language that the person speaks. Each of the statements is signed by the person who testified and the translator. The requirements for translators are set out in Directive No. 64/EC of the European Parliament of October 20, 2010 ^[7].The translator's duties include maintaining the secrecy of confidential information on a particular case, as well as producing an accurate translation. If the translator was influenced by police officers and translated the testimony in violation of the truth of certain facts that may harm the suspect, if such facts are exposed, these proofs will be invalidated, excluded from the materials of the criminal case and will not be considered by the court, and appropriate sanctions will be taken for the translator. An important fact is that with the participation of an interpreter in court, the translator who participated in the pre-trial investigation will participate in the trial as a witness, confirming his translation, and a new separate translator will be appointed to translate the words of the defendant, witnesses or other persons. Moreover, the testimony of the first will be a kind of evidence of the correctness and accuracy of the testimony given by a person who does not speak English at the stage of the preliminary investigation, and the role of the second interpreter will be to assist and assist the court during the proceedings. This indicates that the status of this person changes during the stages of the criminal process. The legislation of the Russian Federation does not provide for the specified procedure for the participation of an interpreter and the change of his status.In accordance with the criminal procedure legislation of Germany, if the interviewee participant in the proceedings has difficulties understanding the German language, he is assigned an interpreter from the list of persons included in the list of forensic experts or translators ^[8]. 

The appointment of an interpreter for each specific case is carried out by the prosecutor or the court by contacting the Federal Ministry of Justice or the Judicial Support Agency. If there are doubts about the bias or competence of a particular interpreter, he may be removed from the investigation of a criminal case by a prosecutor or a judge, depending on who he was previously appointed by. During the preliminary investigation, the accused has the right to apply for the replacement of an interpreter within fourteen days from the date of appointment of his arrival to the accused (not from the date of appointment). 

During the investigation of a criminal case and during the trial, a so-called "written" translator participates, who translates all procedural documents, petitions, contracts and other written documents. At the same time, if necessary, an "interpreter" may be appointed to accompany a person who does not speak the language throughout the investigation and the court session. It is assigned, depending on the workload and work of the first ("written") translator. Thus, an "oral" and a "written" translator can be either the same person or two different ones. The issue of the number of translators is also the responsibility of the prosecutor and the judge, in deciding which, according to the Criminal Procedure Code of the Federal Republic of Germany, officials, first of all, should proceed from considerations of economy, efficiency and expediency ^[9].In cases where the facts of police assistance in the production of translation are confirmed, or other facts of unreliability of information, the translator is replaced, and he is also liable until he is excluded from the above-mentioned register of forensic experts and court translators and brought to criminal responsibility depending on the committed act.

We believe that in the Russian Federation it is also possible to create such a register to include competent translators in it.

In accordance with the criminal procedure legislation of France, an interpreter is assigned "without delay" to a suspect from the moment it is established that the latter has difficulties with speaking or understanding French ^[10].In addition, not all documents are mandatory for translation, except for the testimony of the suspect, but only those listed in the list:

1. Decisions on pre-trial detention, extension or cancellation of detention or on rejection of a request for release, as well as decisions on deprivation of liberty issued as part of the execution of the warrant;
2. Documents on the transfer of a criminal case to the court;
3. Decisions on the announcement of a public lawsuit and the imposition of a guilty verdict issued by the court;
4. A protocol on determining the term of the first appearance or an additional indictment, if a copy was requested by the defense party in accordance with the procedure provided for by the Code of Criminal Procedure of France ^[11].It is noteworthy that until 2013, French legislation allowed participation as an interpreter of an investigator or other representative of law enforcement agencies who has knowledge of the language of the detainee (suspect) who does not speak French.
   

Of course, one has to doubt about the objectivity of the translation in such cases. Subsequently, article D 594-11-3 was adopted, in which the requirements for an interpreter were fixed: "... a person who has reached the age of majority, who does not appear in any of the lists listed below, may be appointed "..." provided that the interpreter or translator is not an investigator, a justice of the peace or a secretary related to the investigated in a criminal case, to one of the parties to the prosecution or defense, or witnesses ..."^[12].Also, the participation of an interpreter is in demand in the interaction of the defender and the suspect.

In order to use the services of an interpreter free of charge, the defender submits a request to call an interpreter at any stage of the investigation in a criminal case, both before sentencing, and when filing an appeal or a petition for release. It should be noted that in Russia, the process of confidential communication between an interpreter and a suspect (accused) is not regulated and practically not investigated.

The study of the historical periods of the interpreter's participation in the criminal proceedings of Russia indicates that the right to use the native language was enshrined in the legislation of both the Russian Empire and the legislation of the Soviet state (the Statute of Criminal Proceedings of the Russian Empire of 1864, in the Constitutions of 1936, 1977, the Code of Criminal Procedure of the RSFSR of 1923, 1960) and in the period the modern state (the Constitution of the Russian Federation of 1993, the Code of Criminal Procedure of the Russian Federation of 2001). The circle of persons to whom an interpreter should be provided is gradually changing and expanding, and in accordance with this, the duties of state bodies and officials to provide it.  The circle of persons is expanding, but the emphasis is on such participants as the suspect and the accused. However, the procedure for involving an interpreter in legal proceedings and its status does not change in any way. The analysis of the dynamics of legislative norms on the participation of an interpreter in criminal proceedings confirms the fact that the norms of criminal procedural legislation of the past and the modern period of Russia are practically not improved in terms of the procedure for the participation of an interpreter, do not eliminate the existing problems of legal regulation, which entails difficulties in practical activities. And it certainly has an impact on the guarantees of the rights and freedoms of persons who do not speak the language of legal proceedings established by the Constitution of the Russian Federation and the Code of Criminal Procedure of the Russian Federation. 

In turn, the study of the modern legislation of the three countries of Great Britain, France, and Germany indicates the similarity of some issues of regulation of the status and participation of an interpreter in criminal proceedings with the legislation of the Russian Federation:

1) The translator must be independent, from among persons who are not related to any side of the criminal proceedings.

2) The interpreter participates in the case at the invitation of the investigator, the investigator, the prosecutor, the court or the relevant competent authorities.

3) Forms of translation: oral and, in some cases, written translation.

4)   The translator exercises his powers in pre-trial and judicial proceedings.

5)   The translator is responsible for assisting the police or the preliminary investigation authorities in translating, for false translation.

6)   An interpreter may be provided free of charge to participants in criminal proceedings.

7)   The participation of an interpreter guarantees the right to use the native language.

But at the same time, certain differences and features have been established, which, in our opinion, can be taken into account and contribute to the change of domestic legislation in matters of the competence of the translator and his participation.

1) The need to appoint two different interpreters if the interests of the accused contradict each other.

2)   Maintaining a register of court interpreters. 

3) The existence of a strict list of documents that are subject to translation and the need for the defender's petitions to involve an interpreter every time there is a need. 

4) The need for a translator to know legal terminology.

5) The possibility to replace an interpreter at the judicial stages of the proceedings, change the status of an interpreter from an interpreter (in pre-trial stages) to the status of a witness at a court hearing.

In general, in our opinion, in order to improve the criminal procedure legislation in the field under study, for the most significant guarantees of ensuring the right to use the native language, it is necessary to indicate the degree of proficiency in its legal terminology in the decision on the appointment of an interpreter. Also, in order to clarify the content of the translator's activity, determine the criteria of his competence and the order of participation, there is a need to take into account some experience of foreign countries: maintaining a register of translators, procedures for attracting an interpreter to participate in legal proceedings at various stages of legal proceedings. It is also necessary to take into account the need to develop regulations for the procedure of communication between the suspect, the accused and the defender with the participation of an interpreter.