9 June 2016 (*1)
‛Reference for a preliminary ruling — Judicial cooperation in criminal matters — Right to interpretation and translation — Directive 2010/64/EU — Scope — Definition of criminal proceedings — Procedure laid down by a Member State for the recognition of a decision in criminal proceedings handed down by a court in another Member State and for the entry in the criminal record of the conviction handed down by that court — Costs in connection with the translation of that decision — Framework Decision 2009/315/JHA — Decision 2009/316/JHA’
In Case C‑25/15,
REQUEST for a preliminary ruling under Article 267 TFEU from the Budapest Környéki Törvényszék (Budapest Regional Court, Hungary), made by decision of 5 January 2015, received at the Court on 21 January 2015, in the proceedings brought against
István Balogh,
THE COURT (Fifth Chamber),
composed of J.L. da Cruz Vilaça, President of the Chamber, A. Tizzano (Rapporteur), Vice-President of the Court, acting as Judge of the Fifth Chamber, F Biltgen, A. Borg Barthet and M. Berger, Judges,
Advocate General: Y. Bot,
Registrar: I. Illéssy, Administrator,
having regard to the written procedure and further to the hearing on 9 December 2015,
after considering the observations submitted on behalf of:
after hearing the Opinion of the Advocate General at the sitting on 20 January 2016,
gives the following
1This reference for a preliminary ruling concerns the interpretation of Article 1(1) of Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings ( OJ 2010 L 280, p. 1 ).
2The request has been made in the course of proceedings before the Budapest Környéki Törvényszék (Budapest Regional Court, Hungary) for recognition in Hungary of the effects of a final judgment handed down by a court of another Member State sentencing Mr István Balogh to a term of imprisonment for a criminal offence and ordering him to pay the costs of the proceedings.
Legal context
3Recitals 2, 3, 5 and 17 of Council Framework Decision 2009/315/JHA of 26 February 2009 on the organisation and content of the exchange of information extracted from the criminal record between Member States ( OJ 2009 L 93, p.23 ) state:
‘(2)
On 29 November 2000, the Council … adopted a programme of measures to implement the principle of mutual recognition of decisions in criminal matters … This Framework Decision contributes to achieving the goals provided for by measure 3 of the programme …
…
…
4Under Article 1 of Framework Decision 2009/315, which defines the objective of that decision:
‘The purpose of this Framework Decision is:
5Article 4 of Framework Decision 2009/315, entitled ‘Obligations of the convicting Member State’, provides:
‘…
2The central authority of the convicting Member State shall, as soon as possible, inform the central authorities of the other Member States of any convictions handed down within its territory against the nationals of such other Member States, as entered in the criminal record.
…
3Information on subsequent alteration or deletion of information contained in the criminal record shall be immediately transmitted by the central authority of the convicting Member State to the central authority of the Member State of the person’s nationality.
4Any Member State which has provided information under paragraphs 2 and 3 shall communicate to the central authority of the Member State of the person’s nationality, on the latter’s request in individual cases, a copy of the convictions and subsequent measures as well as any other information relevant thereto in order to enable it to consider whether they necessitate any measure at national level.’
6Article 5 of Framework Decision 2009/315, entitled ‘Obligations of the Member State of the person’s nationality’, states in paragraph 1:
‘The central authority of the Member State of the person’s nationality shall store all information in accordance with Article 11(1) and (2) transmitted under Article 4(2) and (3), for the purpose of retransmission in accordance with Article 7.’
7Article 11 of Framework Decision 2009/315, entitled ‘Format and other ways of organising and facilitating exchanges of information on convictions’, provides:
‘1. When transmitting information in accordance with Article 4(2) and (3), the central authority of the convicting Member State shall transmit the following information:
In addition, the central authority may transmit any other information concerning convictions entered in the criminal record.
2The central authority of the Member State of the person’s nationality shall store all information of the types listed in points (a) and (b) of paragraph 1, which it has received in accordance with Article 5(1) for the purpose of retransmission in accordance with Article 7. For the same purpose it may store the information of the types listed in point (c) of the first subparagraph and in the second subparagraph of paragraph 1.
3. …
Once the time limit set out in paragraph 7 of this Article has elapsed, central authorities of Member States shall transmit such information electronically using a standardised format.
4The format referred to in paragraph 3 and any other means of organising and facilitating exchanges of information on convictions between central authorities of Member States shall be set up by the Council …
Other such means include:
…’
8Recitals 2, 6 and 12 of Council Decision 2009/316/JHA of 6 April 2009 on the establishment of the European Criminal Records Information System (ECRIS) in application of Article 11 of Framework Decision 2009/315 ( OJ 2009 L 93, p. 33 ), state:
‘(2)
Information on convictions handed down against Member States’ nationals by other Member States does not circulate efficiently on the current basis of the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959. Therefore, there is a need for more efficient and accessible procedures of exchange of such information at EU level.
…
…
9In the words of Article 1 of Decision 2009/316, setting out the subject matter of that decision:
‘This Decision establishes the European Criminal Records Information System (ECRIS).
This Decision also establishes the elements of a standardised format for the electronic exchange of information extracted from criminal records between the Member States, in particular as regards information on the offence giving rise to the conviction and information on the content of the conviction …’
10Article 3 of that decision, entitled ‘European Criminal Records Information System (ECRIS)’, provides in paragraph 1:
‘ECRIS is a decentralised information technology system based on the criminal records databases in each Member State. It is composed of the following elements:
…’
11Article 4 of that directive, entitled ‘Format of transmission of information’, provides:
‘1. When transmitting information in accordance with Article 4(2) and (3) and Article 7 of Framework Decision [2009/315] relating to the name or legal classification of the offence and to the applicable legal provisions, Member States shall refer to the corresponding code for each of the offences referred to in the transmission, as provided for in the table of offences in Annex A. …
Member States may also provide available information relating to the level of completion and the level of participation in the offence and, where applicable, to the existence of total or partial exemption from criminal responsibility or to recidivism.
2When transmitting information in accordance with Article 4(2) and (3) and Article 7 of Framework Decision [2009/315] relating to the contents of the conviction, notably the sentence as well as any supplementary penalties, security measures and subsequent decisions modifying the enforcement of the sentence, Member States shall refer to the corresponding code for each of the penalties and measures referred to in the transmission, as provided for in the table of penalties and measures in Annex B. …
Member States shall also provide, where applicable, available information relating to the nature and/or conditions of execution of the penalty or measure imposed as provided for in the parameters of Annex B. …’
12Recitals 14, 17 and 22 of Directive 2010/64 state:
‘(14)
The right to interpretation and translation for those who do not speak or understand the language of the proceedings is enshrined in Article 6 of the [European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950], as interpreted in the case-law of the European Court of Human Rights. This Directive facilitates the application of that right in practice. To that end, the aim of this Directive is to ensure the right of suspected or accused persons to interpretation and translation in criminal proceedings with a view to ensuring their right to a fair trial.
…
…
13Article 1 of that directive, under the heading ‘Subject matter and scope’, provides, in paragraphs 1 and 2:
‘1. This Directive lays down rules concerning the right to interpretation and translation in criminal proceedings and proceedings for the execution of a European arrest warrant.
2The right referred to in paragraph 1 shall apply to persons from the time that they are made aware by the competent authorities of a Member State, by official notification or otherwise, that they are suspected or accused of having committed a criminal offence until the conclusion of the proceedings, which is understood to mean the final determination of the question whether they have committed the offence, including, where applicable, sentencing and the resolution of any appeal.’
14Article 3(1) and (2) of Directive 2010/64 read as follows:
‘1. Member States shall ensure that suspected or accused persons who do not understand the language of the criminal proceedings concerned are, within a reasonable period of time, provided with a written translation of all documents which are essential to ensure that they are able to exercise their rights of defence and to safeguard the fairness of the proceedings.
2Essential documents shall include any decision depriving a person of his liberty, any charge or indictment, and any judgment.’
15Article 4 of the same directive provides:
‘Member States shall meet the costs of … translation resulting from the application [of Article] 3, irrespective of the outcome of the proceedings.’
16Paragraph 46(1) of the nemzetközi bűnügyi jogsegélyről szóló 1996. évi XXXVIII. törvény (Law No XXXVIII of 1996 on international mutual assistance in criminal matters) (‘the Law on international mutual assistance in criminal matters’) states that the court with ratione materiae and territorial jurisdiction under the special procedure for recognition of the validity of a foreign judgment is that within whose area the accused is resident ordinarily. Under Paragraph 46(3) of that law, the applicable procedure is governed by the general rules of the büntetőeljárásról szóló 1998 évi XIX. törvény (law No XIX of 1998 on criminal procedure) (‘Law on criminal procedure’) relating to special procedures, such as that at issue in the main proceedings.
17Paragraph 9(1) of the Law on criminal procedure states that the language in which criminal proceedings are to be conducted is Hungarian.
18According to Paragraph 339(1) of that law, the State is to bear the costs which the accused person is not required to pay. The accused, in accordance with Paragraph 338(1) of the Law on criminal procedure, is to be ordered to pay the costs if he is found guilty or his liability to pay the cost is established because he has committed an offence.
19Paragraph 555(2)(j) of the Law on criminal procedure states that, in the course of special procedures, the costs of the proceedings are to be met by the accused if he has been ordered to pay the costs in the main proceedings.
20By judgment of 13 May 2014, which became final on 8 October 2014, the Landesgericht Eisenstadt (Regional Court, Eisenstadt, Austria) sentenced Mr Balogh, a Hungarian national, to a term of imprisonment for aggravated burglary on a systematic footing and ordered him to pay the costs of the proceedings. The competent Austrian authorities informed the Igazságügyi Minisztérium Nemzetközi Büntetőjogi Osztálya (the International Criminal Law Department of the Ministry of Justice, Hungary) (‘the Department’) of the content of that judgment, which they then forwarded to the Department at its request.
21The Department transmitted that judgment to the referring court as the court with jurisdiction for the recognition of the validity of that judgment in Hungary, in accordance with the special procedure provided for in the Law on international mutual assistance in criminal matters referred to in paragraph 16 above. That special procedure, which involves neither a new assessment of the facts or of the criminal liability of the convicted person nor a fresh conviction, has as its sole purpose to accord to the judgment of the foreign court the same status it would have had if it had been delivered by a Hungarian court and is essential for that purpose.
22Since the judgment in question is written in German, the referring court must, in accordance with the special procedure, make arrangements for its translation into the language of the proceedings, which, in the present case, is Hungarian.
23In accordance, inter alia, with Paragraph 555(2)(j) of the Law on criminal procedure, which applies to the proceedings concerned pursuant to Paragraph 46(3) of the Law on international mutual assistance in criminal matters and Paragraph 338(1) of that law, the person ordered to pay the costs relating to the main proceedings is required to bear the costs relating to special procedures.
24It is apparent, however, from the order for reference that two different judicial practices have developed in Hungary concerning payment of the costs relating to the special procedure at issue in the main proceedings.
25On one hand, the view has been taken that Directive 2010/64, which provides that translation is to be free of charge, makes the special provisions of Hungarian law inapplicable, which therefore leaves in place the provision of a general nature laid down in Paragraph 9 of the Law on criminal procedure, according to which an accused person of Hungarian nationality has the right to use his native tongue. It follows that the State is responsible for the costs of translating the foreign decision pursuant to Paragraph 339(1) of that law.
26On the other hand, the view has also been taken that the main proceedings, which concluded by a judgment convicting the accused, are separate from the special procedure, which is ancillary in nature and has as its purpose the recognition of the effects of that judgment in Hungary. Consequently, while the accused must be provided with free linguistic assistance in the main proceedings where he does not have a command of the language in which those proceedings are conducted, that does not apply in the context of an ancillary procedure to the translation into the language of that procedure, of which the person concerned has a command, of a judgment handed down by a foreign court as that translation is necessary for the purposes of that procedure, not for the purpose of protecting the rights of the convicted person.
27In those circumstances, the Budapest Környéki Törvényszék (Budapest Regional Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Article 1(1) of Directive 2010/64/EU reads: “This Directive lays down rules concerning the right to interpretation and translation in criminal proceedings and proceedings for the execution of a European arrest warrant.” Must this formulation be taken to mean, inter alia, that, during a special procedure (Chapter XXIX of the Law on criminal procedure), a court in Hungary must apply this Directive, that is to say, must a special procedure under Hungarian law be regarded as being covered by the expression “criminal proceedings”, or must this expression be interpreted as referring only to procedures which conclude with a final decision concerning the criminal liability of the accused person?’
28As a preliminary point, it should be recalled that the Court has consistently held that it may, with a view to providing the court which has referred a question to it with an answer which will be of use to it, find it necessary to consider provisions of EU law which the national court has not referred to in its questions. Furthermore, where necessary, the Court may have to reformulate the questions referred to it (see, inter alia, judgments of 13 March 2014 in SICES and Others, C‑155/13 , EU:C:2014:145 , paragraph 23 , and 11 February 2015 in Marktgemeinde Straßwalchen and Others, C‑531/13 , EU:C:2015:79 , paragraph 37 ).
29As the Austrian Government and the European Commission pointed out in their observations, the situation at issue in the main proceedings may come within the scope of Framework Decision 2009/315 and Decision 2009/316.
30It is apparent from the file, first, that in the main proceedings the competent Austrian authorities informed the Department of the conviction handed down by the Landesgericht Eisenstadt (Regional Court, Eisenstadt) in respect of Mr Balogh, in accordance with Article 4(2) of Framework Decision 2009/315, through ECRIS, established by Decision 2009/316, with a view to the storage by Hungary of the information forwarded in accordance with Article 5(1) of that framework decision.
31Secondly, the department asked that the judgment of that court be sent to the competent Austrian authorities and, after having received it from them, sent it to the Budapest Környéki Törvényszék (Budapest Regional Court), in accordance with the special procedure at issue in the main proceedings, with a view to its recognition in Hungary and the entry of that conviction in the Hungarian criminal record. Under the applicable national law, the application of that procedure is essential for that purpose.
32In accordance with Article 1 of Framework Decision 2009/315, the purpose of that decision is specifically to define, inter alia, the ways in which the convicting Member State transmits to the Member State of the person’s nationality, with a view to its storage by that State, information on convictions handed down within its territory against a national of the latter Member State as entered in the criminal records of the convicting Member State. Furthermore, the purpose of Decision 2009/316, in accordance with Article 1 of that decision, is to provide information in a standardised format in which that information is exchanged between Member States.
33In those circumstances, it is necessary, in order to give a useful answer to the referring court, to take into account not only Directive 2010/64 but also Framework Decision 2009/315 and Decision 2009/316 and to reformulate, in accordance with the foregoing, the question referred.
34Therefore, it is appropriate to understand that question as asking, in essence, whether Directive 2010/64, Framework Decision 2009/315 and Decision 2009/316 must be interpreted as precluding the implementation of national legislation establishing a special procedure for recognition by a court of a Member State of a final decision, handed down by a court in another Member State, convicting a person for the commission of an offence, such as the special procedure at issue in the main proceedings, which provides, inter alia, that that person is responsible for the costs of translating that decision under that procedure.
35In order to answer that question, it should be noted that the Court has consistently held that, in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (see, inter alia, judgment of 21 May 2015 in Rosselle, C‑65/14 , EU:C:2015:339 , paragraph 43 and the case-law cited).
36Concerning the interpretation of Directive 2010/64, it is necessary, in the first place, to note that, in accordance with Article 1(1) thereof, that directive lays down rules concerning the right to interpretation and translation in criminal proceedings and proceedings for the execution of a European arrest warrant. It is apparent from the wording of Article 1(2) of that directive that that right is to apply to the person concerned from the time that he is made aware by the competent authorities of a Member State that he is suspected or accused of having committed a criminal offence until the conclusion of the proceedings, which is understood to mean the final determination of the question whether that person has committed the offence, including, where applicable, sentencing and the resolution of any appeal.
37A special procedure, such as that at issue in the main proceedings, which has as its purpose the recognition of a final judicial decision handed down by a court of another Member State, takes place, by definition, after the final determination of whether the suspected or accused person committed the offence and, where applicable, after the sentencing of that person.
38In the second place, it should be noted that, as, inter alia, recitals 14, 17 and 22 of Directive 2010/64 state, that directive seeks to ensure, for suspected or accused persons who do not speak or understand the language of the proceedings, the right to interpretation and translation by facilitating the application of that right with a view to ensuring that those persons have a fair trial. Therefore, Article 3(1) and (2) of that directive provide that Member States are to ensure that those persons are, within a reasonable period of time, provided with a written translation of all documents, including the judgment handed down in their regard, which are essential for the purpose of ensuring that they are able to exercise their rights of defence and safeguarding the fairness of the proceedings.
39It is apparent from the explanations provided by the Austrian Government at the hearing before the Court that Mr Balogh obtained the translation of the judgment of the Landesgericht Eisenstadt (Regional Court, Eisenstadt) which was served on him in August 2015. In those circumstances, a new translation of that judgment in the special procedure at issue in the main proceedings, seeking recognition of that judgment in Hungary and the entry of the conviction in the Hungarian criminal records, was not necessary for the purpose of ensuring Mr Balogh’s right to a fair hearing or his right to effective judicial protection and was not, therefore, justified in the light of the objectives pursued by Directive 2010/64.
40It follows from all the foregoing considerations that Directive 2010/64 is not applicable to a special procedure such as that at issue in the main proceedings.
41Concerning the interpretation of Framework Decision 2009/315 and of Decision 2009/316, it is necessary to refer, inter alia, to Articles 4, 5 and 11 of the framework decision and to Articles 3 and 4 of the decision.
42The first sentence of Article 4(2) of Framework Decision 2009/315 provides that the central authority of the convicting Member State is to inform, as soon as possible, the central authorities of the other Member States of any convictions handed down within its territory against the nationals of those Member States, as entered in the criminal record of the convicting Member State. Article 5(1) and Article 11(2) of that framework decision state that the central authority of the Member State of the person’s nationality is to store the information received.
43The list of information to be transmitted by the convicting Member State to the Member State of the person’s nationality is set out in Article 11(1) of the framework decision, which makes no reference to the decision handed down by the courts of the convicting Member State.
44Furthermore, pursuant to Article 11(3) of Framework Decision 2009/315, that information is to be exchanged between Member States electronically using a standardised format. In that regard, Articles 3 and 4 of Decision 2009/316 state that information relating to the name or legal classification of the offence and that relating to the contents of the conviction is to be transmitted between the central authorities of Member States via ECRIS in the form of codes corresponding to each of the offences and penalties referred to in the transmission.
45It is true that Article 4(4) of Framework Decision 2009/315 provides that the convicting Member State is to communicate to the central authority of the Member State of the person’s nationality, on the latter’s request in individual cases, a copy of the convictions and subsequent measures as well as any other information relevant thereto in order to enable it to consider whether they necessitate any measure at national level.
46However, it is apparent both from the wording of that provision and from the scheme of Article 4 as a whole and that of Article 11(1) of the framework decision that the conviction is to be transmitted to the central authority of the Member State of the person’s nationality only where particular circumstances so dictate and that this cannot be required as a matter of course for the purpose of entering that conviction in the criminal record of that Member State.
47It is apparent from the clarifications provided by the Hungarian Government at the hearing before the Court that the special procedure at issue in the main proceedings is applied systematically and that, in the present case, no special circumstances justify the application of that procedure to the recognition of the judgment handed down by the Landesgericht Eisenstadt (Regional Court, Eisenstadt) against Mr Balogh or, in that context, a request to transmit that judgment. Consequently, that request could not be justified under Article 4(4) of Framework Decision 2009/315.
48It follows from the foregoing that, in accordance with Framework Decision 2009/315 and Decision 2009/316, the central authority of the Member State of the person’s nationality must enter in the criminal record convictions handed down by the courts of the convicting Member State directly on the basis of the transmission by the central authority of the convicting Member State, via ECRIS, of the codified information relating to those convictions.
49In those circumstances, the entry of such convictions cannot depend on the prior application of a procedure for judicial recognition of those convictions, such as the special procedure at issue in the main proceedings, still less on the communication to the Member State of the person’s nationality of the decision convicting the person concerned for the purpose of such recognition.
50Such an interpretation is borne out by the objectives pursued by Framework Decision 2009/315 and by Decision 2009/316.
51It is apparent, inter alia, from recitals 2, 3, 5 and 17 of Framework Decision 2009/315 and recitals 2, 6 and 12 of the decision that the system for the exchange of information established by those decisions aims, in order to facilitate mutual legal assistance and to guarantee mutual recognition of decisions in criminal matters, to simplify the procedures for transferring documents between Member States, to improve and streamline the exchange of information extracted from criminal records between those States and to reinforce the effectiveness of those exchanges by the creation of a standardised European format allowing information to be transmitted in a uniform, electronic and easily computer-translatable way, with the help of standard forms and codes.
52Therefore, as the Advocate General stated in point 63 of his Opinion, Framework Decision 2009/315 and Decision 2009/316 are intended to establish a rapid and effective system for the exchange of information relating to criminal convictions handed down in the various EU Member States.
53A procedure for the recognition of decisions imposing convictions handed down by the courts of other Member States, such as that at issue in the main proceedings, prior to the entry of those convictions in the criminal record, which, moreover, requires the transmission and translation of those decisions, is likely to delay considerably that entry, complicate the exchange of information between Member States, deprive the automatic translation system established by Decision 2009/316 of any effectiveness and jeopardise the attainment of the objectives pursued by Framework Decision 2009/315 and Decision 2009/316.
54In addition, and more generally, such a procedure conflicts with the principle of mutual recognition of judgments and judicial decisions in criminal matters laid down in Article 82(1) TFEU, which replaced Article 31 EU, on which Framework Decision 2009/315 and Decision 2009/316 are based. That principle precludes the recognition by a Member State of the decisions handed down by the courts of another Member State being conditional on the application, in the first of those Member States, of a judicial procedure for that purpose, such as the special procedure at issue in the main proceedings.
55It follows from all the foregoing that Framework Decision 2009/315 and Decision 2009/316 preclude the implementation of national legislation establishing a special procedure for the recognition of a decision handed down by the court of another Member State, such as the procedure at issue in the main proceedings.
56In the light of the foregoing considerations, the answer to the question referred is that:
57Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Fifth Chamber) hereby rules:
Article 1(1) of Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings must be interpreted as meaning that that directive is not applicable to a national special procedure for the recognition by the court of a Member State of a final judicial decision handed down by a court of another Member State convicting a person for the commission of an offence.
Council Framework Decision 2009/315/JHA of 26 February 2009 on the organisation and content of the exchange of information extracted from the criminal record between Member States and Council Decision 2009/316/JHA of 6 April 2009 on the establishment of the European Criminal Records Information System (ECRIS) in application of Article 11 of Framework Decision 2009/315 must be interpreted as precluding the implementation of national legislation establishing such a special procedure.
[Signatures]
(*1) Lanuage of the case: Hungarian.
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