ECLI:NL:RBDHA:2020:14982

Uitspraak

To: [counsel]

Sent by email

Date

7 May 2020

From

[Examining magistrate]

Case number:

09/748006-19

Subject

Translation of documents in the file

Dear [counsel],

Procedure

On 23 March 2020 the district court referred the case of the defendant [defendant] to the examining magistrate to give a decision as necessary on translation of documents in the file into Russian.

On 24 April 2020 I received a request from you for translation of documents in the file and correspondence.

By letter of 29 April 2020 the Public Prosecutor gave his views on this request.

Defence’s request

Translation of the following documents is requested:

1.
all material parts of the prosecution file, namely:

General File

Investigation Overview Document;
Alternative scenarios;
Appendices file;
Appendices file (witnesses);
Appendices file (intercepted conversations)
Context file;
Forensic investigation file;
National Forensic Investigation Team (LTFO) file;
Aviation file;
Telecom file;
Weapon file;

Personal file

-
[defendant].

Case file

Background;
Supply route;
Launch site;
Removal route;
Reactions to the downing of the aircraft;
Origin of the Buk;
Supplements;

plus all appendices to each file;

on the understanding that the translation of the Investigation Overview Document and [defendant's] personal file are no longer needed, but the appendices to those files are;

2. future
(draft) correspondence with and between the Public Prosecution Service and the district court(by a translator to be engaged by the defence).

(1) With regard to the request for translation of the ‘material parts of the prosecution file’, you submitted that these are essential documents in the case, translations of which are required for the defence.

In the first place you stated that it was impracticable to go over the file and discuss it with your client with the assistance of an interpreter in view of its size, complexity and sensitivity. In your view your client needs to be able to take cognizance of the information in the file himself, so that nothing is overlooked and no details are lost in oral transmission. You refer in this regard to the gravity of the offence with which your client has been charged and the potential consequences of the trial for him.

You also referred to the applicable preventive measures in connection with coronavirus, especially the travel restrictions, as a result of which you could not currently discuss the prosecution file with your client in person (assisted by an interpreter). You assert that this makes it impossible to prepare the defence.

Finally, you assert that in this case there is an extra obligation to look generously upon translation requests since the Public Prosecution Service has decided to prosecute your client in the Netherlands under Dutch criminal law and the Dutch law of criminal procedure, which means that he will be tried in a foreign country in a language unintelligible to him, for offences that were allegedly committed far from the Netherlands.

(2) With regard to your request for the translation of (all) future (draft) correspondence with the district court and the Public Prosecution Service, you assert that this is necessary for the defence to keep your client informed of the course of proceedings and to receive his input and/or approval on an ongoing basis. In your view, it is not practicable and/or desirable, due to the complexity and sensitivity of the material and because of time considerations, to discuss it via an interpreter or to submit translation requests on a case-by-case basis.

Public Prosecutor's views

The Public Prosecutor asserted the following:

(1) with regard to the request for translation of the documents in the case:

the Investigation Overview Document and the personal file have already been translated and no explanation has been given as to why additional Russian translation of other documents is necessary;
it is not clear why an explanation of the contents of the file cannot be given by counsel themselves;
the exact documents to which the request relates have not been specified, nor has it been explained why the translation of these specific documents in full or in part is necessary; the complete translation of certain documents is in fact manifestly unnecessary;
the defendant has shown himself to be eminently capable of determining his stance in the proceedings;
it is not exceptional for a defendant who has no command of Dutch to be prosecuted in the Netherlands for a serious offence, even for an offence committed outside the Netherlands;
it is a misconception that the requested translation will save time;

(2) with regard to the request for translation of the correspondence:

it is not clear why an explanation of the content of correspondence with the district court and the Public Prosecution Service cannot be given by counsel themselves;
the request falls outside the scope of Section 32a of the Code of Criminal Procedure because it does not concern existing documents or documents in the case.

Assessment framework

I will assess the request against the criteria that apply to translation of documents in a case.

These criteria are based on Article 3, paragraph 1 of Directive 2010/64/EU (the Directive), which lays down the right to translation of essential documents in a case. Paragraph 4 makes the qualification that there is no requirement to translate passages of essential documents which are not relevant. Article 32a of the Code of Criminal Procedure implements this part of the Directive into Dutch law. Paragraph 1 of Section 32a provides that the defendant may request a written translation in full or in part of documents in the case which he considers necessary for his defence and that a request to this end must define as clearly as possible the documents or parts thereof concerned and state the reasons on which it is based.

It is apparent from the explanatory memorandum to Section 32a of the Code of Criminal Procedure (House of Representatives 2011-2012, Parliamentary Paper 22 355, no. 3) that it is assumed that an interpreter will provide an oral translation during discussions between the defendant and counsel to prepare the defence. If this is not sufficient, a written translation of certain documents deemed necessary may be requested. In this context, reference is made,
inter alia, to a judgment by the Supreme Court (Supreme Court, 16 December 1997, ECLI:NL:HR:1997:ZD0228), in which the Supreme Court held (paragraph 6.2.5) that an unlimited right to translation of written material in criminal proceedings could not be derived from Section 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. In view of the burden that written translation of documents imposes with regard to the progress of proceedings, counsel may at the very least be required, if the file is sizeable, to indicate precisely which documents they wish to be translated, according to the Supreme Court.

Assessment

(1) With regard to the request for translation of the ‘material parts of the prosecution file’, I find as follows.

The request lists practically all sub-files in the prosecution file, including appendices. The request is not precise; in fact it is a generic request. Without further explanation, it is not possible to understand why written translation of all the documents in the sub-files mentioned should be considered necessary for the defence, for example, as pointed out by the Public Prosecutor, the Aviation and LTFO sub-files. Nor, to give another example at random, is it immediately clear why both the preliminary report of the Dutch Safety Board [number] and the final report, Crash of Malaysia Airlines flight MH17 [number], must be translated.

In addition, the request fails to explain why the documents must be translated in their entirety and why translation of relevant passages would not suffice. This distinction, which is made in the Directive and in the Code of Criminal Procedure, is even more important when dealing with a sizeable file such as the present one, in terms of both substance (it is obvious that not every page of every document in the file is needed to conduct the defence) and the course of proceedings (proceedings must not be unnecessarily delayed and translation is a time-consuming undertaking).

This is especially true given that two files (the Investigation Overview Document and your client's personal file) have already been translated. In view of the content of these files – a summary of the investigation and a summary of the allegations against your client – and the content of the translated writ of summons, it may be assumed that your client has been able to gain an understanding of the nature and scale of the criminal case against him. The request wrongly fails to take account of this.

I therefore take the view that the request is not specific enough and has been inadequately justified, both in general terms in view of the criterion laid down in Section 32a, paragraph 1 of the Code of Criminal Procedure and more specifically in view of the circumstance that two crucial files have already been translated. It is not for me to select
ex proprio motuwhich documents or sections of documents are necessary.

The arguments you present provide no grounds for me to form a different view.

It is not the case that it is necessary for your client to take note himself of the entire (material) prosecution file. It is assumed that counsel, who have a full command of Dutch and are therefore in a position to understand the file, are able to determine whether it includes documents of which a written translation is needed to conduct a proper defence (House of Representatives 2011-2012, Parliamentary Paper 22 355, no. 3; in response to an observation by the Netherlands Bar Association (NOvA)). I see no reason why this case – even in light of what you argue in point 11 – should be different. In fact in a case which is, as you put it, complex, sizeable and sensitive, it is especially important that a request be specific. The fact that your client is suspected of having committed very serious offences is relevant but does not alter the minimum requirements that a request for written translation should meet, as referred to above.

Nor do the (travel) restrictions put in place to combat coronavirus justify granting the request. Leaving aside the fact these restrictions are temporary, the assumption is that counsel and their client consult orally, assisted by an interpreter, and at the present time (even with these restrictions) there are sufficient (secure) means available for them to do so. Moreover, it has not been plausibly established that a translation of all ‘material parts of the prosecution file’, a very time-consuming task, would actually save time.

Finally, the international aspects of the case do not constitute grounds to look upon a translation request more generously. Leaving aside the fact that the Public Prosecution Service has already had two crucial files translated, the trial in the Netherlands of a non-Dutch national who does not speak Dutch and is suspected of a criminal offence committed outside the Netherlands is by no means unique.

In view of the foregoing, I shall deny the request for written translation of the ‘material parts of the prosecution file’.

(2) With regard to the request for translation of future (draft) correspondence with and between the Public Prosecution Service and the district court, I find as follows.

The district court referred the case to me to give a decision as necessary on translation of documents in the file into Russian. The (draft) correspondence, translation of which is requested, cannot be categorised as ‘documents in the file’. Furthermore, I infer from what the Public Prosecutor stated in court that in its referral request the Public Prosecution Service had in mind documents in the case as referred to in Section 32a of the Code of Criminal Procedure. In its referral the district court made reference to the examining magistrate's power to make decisions about the translation of documents at an earlier stage of the investigation (p.47 of the official record of the hearing), by which it evidently meant the power conferred under Section 32a, paragraph 3 of the Code of Criminal Procedure.

I therefore find that the defence’s request is not admissible in so far as it concerns translation of future (draft) correspondence, because the referral does not relate to documents of that kind.

Decision

On the basis of the above considerations, my decision is as follows:

the request for translation of the ‘material parts of the prosecution file’ is denied;
the defence's request for translation of (draft) correspondence is not admissible.

A copy of this letter will be sent by email to the Public Prosecutor and the president of the district court.

Yours sincerely,