Abstract
In Case C-564/19 IS, the Court of Justice of the European Union delivered a judgement on two significant issues of EU law. First, it clarified the obligations of Member States under Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings regarding the provision of linguistic assistance during the criminal procedure and the consequences of failure to adhere to them. Second, it ruled on the EU-law conformity of national judicial decisions taken by higher courts which can indirectly constrict the right of lower courts of a Member State to initiate preliminary ruling procedures before the CJEU. Thirdly, it held national measures where the referring judge is submitted to a disciplinary procedure for referring a question to the CJEU contrary to EU law. The judgment builds on and further develops the Court's jurisprudence on preliminary rulings and judicial independence.
Keywords
Introduction
In Case C-564/19 IS, 1 the ECJ has delivered a judgment that concerns both EU criminal procedure law and the preliminary ruling procedure in the context of judicial independence. This case note sheds light on the importance of the judgment from both perspectives.
Relevant facts
Case C-564/19 IS started in 2019 when a Hungarian judge of the Pesti Központi Kerületi Bíróság (Central District Court, Pest) referred – initially three and then two additional – questions to the ECJ for a preliminary ruling. In the main proceedings, a criminal charge was brought against a Swedish national of Turkish origin due to an alleged infringement of the provisions of Hungarian law governing the acquisition, possession, manufacture, marketing, import, export or transport of firearms or ammunition. 2
The accused did not understand the language of the criminal procedure – it being Hungarian –, so an interpreter was appointed in accordance with the Hungarian criminal procedure code. 3 Despite the interpreter's presence, the accused person refrained from giving a statement since the lawyer appointed to his case could not attend the questioning. 4 Following the questioning, the accused left the country.
The referring judge sought the opinion of the ECJ concerning the correct application of Directive 2010/64 on the right to interpretation and translation. The judge explained that the quality of the interpretation could not be determined for two reasons. First, Hungary did not set up a register of independent translators and interpreters – as described in Article 5(2) of the Directive – who are appropriately qualified to carry out interpretation and translation in the criminal procedure. Second, the Hungarian criminal procedure code did not clarify the criteria to be assessed when appointing interpreters or translators in a criminal procedure, 5 thus the judge is not able to ascertain whether the quality of interpretation is sufficient to meet the requirements set out in Article 2(8) of the Directive.
Based on the above, the referring judge asked the ECJ if Article 6(1) TEU and Article 5(2) of Directive 2010/64 must be interpreted as meaning that, in order to guarantee the right to a fair trial for accused persons who do not speak the language of the proceedings, a Member State must create a register of properly qualified independent translators and interpreters or – failing that – ensure by some other means that it is possible to review the quality of language interpretation in judicial proceedings. In case the ECJ's answer to the previous question was affirmative, the judge had a further related question, namely whether, if it was not possible to establish whether the accused person had been informed of the subject matter of the charge against him or her, Article 6(1) TEU, Articles 4(5) and 6(1) of Directive 2012/1 must be interpreted as meaning that, in such circumstances, the proceedings cannot continue in absentia. 6
The second and the third questions concerned the Hungarian judicial system, specifically the rules regarding the appointment and remuneration of judges, which in the view of the referring judge had an impact on judicial independence. 7 To wit, the referring judge asked whether judicial independence – as safeguarded by Article 19 TEU and Article 47 of the Charter – must be interpreted as precluding the president of the Hungarian National Office for the Judiciary from appointing the president of a court, by circumventing the applications procedure for judges and having recourse to direct temporary appointments, bearing in mind that the president of a court is empowered, inter alia, to decide on the allocation of cases, to commence disciplinary proceedings against judges and to assess judicial performance and, if the answer is in the affirmative, whether the proceedings before a court so presided over can be considered fair (second question). 8 The referring judge further asked whether the principle of judicial independence must be interpreted as precluding a remuneration system which has the result that judges receive lower remuneration than prosecutors of the same category and allows discretionary bonuses to be awarded to judges and, if so, whether that principle must be interpreted as meaning that the right to a fair trial cannot be guaranteed in such circumstances. 9
Subsequent to the submission of the aforesaid questions, the referring judge supplemented his initial request. The reason for that was that the Kúria (the Supreme Court of Hungary) had, in the meantime, held that the original referral had been unlawful since the questions submitted to the ECJ for a preliminary ruling were not relevant for the underlying dispute in the main proceedings – the Kúria decided on an ‘appeal in the interest of the law’ lodged by the Prosecutor General of Hungary. 10 The referring judge argued in his supplementary referral that even though the Kúria's decision did not have a binding effect on the decision to refer preliminary questions – meaning that it did not force him to set aside the order for reference to the ECJ –, it did have the ability to constrict the right of lower courts in Hungary to refer preliminary questions to the ECJ since it was delivered in a procedure intended to harmonize the Hungarian jurisprudence. 11 In addition, disciplinary proceedings were brought against the referring judge at the Fővárosi Törvényszék (Budapest High Court) on the ground that he – supposedly – initiated the preliminary ruling procedure without sufficient grounds. 12 Taking these facts into consideration, the referring judge decided to ask the ECJ if Article 267 TFEU must be interpreted as precluding a national practice whereby the court of last instance, in proceedings intended to harmonize the judicial practice of the Member State, declares a decision by which a lower court requests a preliminary ruling unlawful, without, however, altering the legal effects of the decision in question. In addition, the judge inquired if the principle of judicial independence, established in the second subparagraph of Article 19(1) TEU, Article 47 of the Charter and the case law of the Court of Justice, read in the light of Article 267 TFEU, must be interpreted as meaning that that principle precludes disciplinary proceedings being brought against a judge for having requested a preliminary ruling. 13
The reasoning of the Court of Justice
The Court examined the fourth question first and reiterated its view that under EU law, national courts have the broadest discretion in referring questions to the ECJ involving the interpretation of relevant provisions of EU law. It pointed out that even though EU law does not preclude an order for reference from being subject to a judicial remedy under national law per se, a decision of a supreme court, by which a request for a preliminary ruling is declared unlawful on the ground that the questions referred are not relevant or necessary for the resolution of the dispute in the main proceedings is incompatible with Article 276 TFEU, since a final assessment of these factors can only lawfully be made by the ECJ. 14 The ECJ did not consider it relevant that the proclamation of unlawfulness by the Kúria did not mean that the referring court had to withdraw its reference. The ECJ found that even so, such a finding of illegality is liable to weaken the authority of the answers provided by the ECJ as well as that of the judgment to be passed in the light of those answers; the Court also stressed that such a situation could discourage Hungarian courts from initiating preliminary rulings. 15 Thus the Court held that Article 267 TFEU must be interpreted as precluding the supreme court of a Member State from declaring, following an appeal in the interests of the law, that a request for a preliminary ruling by a lower court is unlawful on the ground that the questions referred are not relevant and necessary for the resolution of the dispute in the main proceedings, without, however, altering the legal effects of the decision containing that request, and, secondly, that the principle of the primacy of EU law requires that lower court to disregard such a decision of the national supreme court. 16
In terms of the fifth question, the ECJ started by delimiting the relevant EU law. The referring judge sought the interpretation of Article 19(1) TEU, Article 47 of the Charter of Fundamental Rights and Article 267 TFEU. The ECJ, however, pointed out that the question was relevant in a procedural context, as a procedural problem that needed to be resolved to enable the national court to pass a decision on the substance of the case – consequently, the Court decided only to examine the question in the light of Article 267. Nevertheless, the Court found no difficulty in briefly concluding that provisions of national law which expose national judges to disciplinary proceedings because of the fact that they have made a reference for a preliminary ruling are contrary to EU law as such provisions would undermine the preliminary ruling procedure – and thus the uniform interpretation and application of EU law as well. 17
Regarding the first question, the ECJ first examined the binding nature of Article 5(2) of Directive 2010/64, setting out the objective for Member States to establish a register of sufficiently qualified translators and interpreters who can participate in the criminal proceedings to provide the sufficient quality of interpretation and translation in the criminal procedure. 18 Taking into consideration the aim of the Directive – that is, to ensure that suspects or accused persons who do not speak or understand the language of the criminal proceedings can fully exercise their right of defence by providing free and adequate linguistic assistance 19 – the Court noted that Article 5(1) obliges Member States to take concrete measures to provide the quality of interpretation and translation. However, through careful analysis of Article 5(2) of the Directive, the Court found that setting up such a register cannot be regarded as an obligatory step for Member States since the underlying objective could be reached by other means as well. 20 Therefore the Court found that setting up a register of interpreters and translators cannot be regarded as an obligation for Member States; however, Article 5 of Directive 2010/64 must be interpreted as obliging Member States to take concrete measures for ensuring the sufficient quality of the interpretation and translation in the criminal proceedings. 21
The second part of the first question asked whether the procedure could be continued in absentia, considering that the quality of translation provided to the accused cannot be determined. According to the judge, such a circumstance infringes Articles 4(5) and (6)1 of Directive 2012/13, stipulating that an accused shall be informed of the criminal offence they are accused of having committed in a language which they understand. Building on ECtHR case law, 22 the ECJ found that refusing sufficient linguistic assistance to a person who does not speak the language of the criminal proceedings is enough to deprive the proceedings of their fairness, 23 which is deemed to be enough to preclude a trial in absentia. 24 Nevertheless, in this case, it was not the provision of interpretation that was called into question but the quality of interpretation. Given that the proper interpretation of that information is decisive in the criminal proceedings, the Court adopted an analogous approach to the arguments above and concluded that the lack of judicial review of the quality of interpretation can also undermine the fairness of procedure, thus precluding the continuation of the criminal procedure in absentia. 25
The ECJ finally addressed the second and third questions together and stressed firstly that in a preliminary ruling procedure, there must always be a ‘connecting factor’ between the main proceedings and the provisions of EU law to be interpreted by the ECJ. And in the current case, the ECJ found this connective tissue to be lacking for three reasons. Firstly, the main proceedings did not concern the judicial system of Hungary as a whole, a fact that could not be changed by the consideration that there may, in fact, be a material connection between the substance of the main proceedings and Article 47 of the Charter. 26 Secondly, the second and third questions did not relate to the interpretation of procedural provisions of EU law which the referring court is required to apply in order to deliver its judgment. 27 Thirdly, any eventual answer to these questions seemed to the ECJ incapable of providing the referring court with an interpretation of EU law which would allow it to resolve procedural questions of national law before being able to rule on the substance of the original case. 28
Comments
The judgment is firstly relevant in the context of criminal procedural harmonization. Based on Article 82(2) TFEU, in an attempt to balance the harmful effects of the system of criminal cooperation of EU Member States on the rights of individuals involved in a criminal procedure, 29 the European Parliament and the Council adopted directives on strengthening certain procedural rights of the suspect and the accused (namely the right to translation and interpretation, the right to information, the right to access to a lawyer, the right to be present at the trial, the presumption of innocence and several procedural safeguards for child suspect).
It is notable that each directive set the ECHR and the case law of the ECtHR as qualitative standards for the application of their procedural provisions. 30 In other words, the EU legislature established minimum standards for the application of those procedural rights. This is especially observable where the directives specify Member States’ obligations to guarantee a specific procedural right. For example, Articles 2(8) and 3(9) of Directive 2010/64 on the right to interpretation and translation stipulate that the quality of the interpretation in the procedure and the translation of the relevant documents must be sufficient to safeguard the fairness of proceedings, in particular by ensuring that suspected or accused persons have knowledge of the case against them and are able to exercise their right of defence. 31
Mitsilegas speculated regarding these self-standing quality standards that the CJEU will eventually interpret them. 32 In IS, the ECJ clarified an important standard regarding the right to interpretation in the criminal procedure. The ECJ referred to the obligation of the competent authorities as set out in the case law of the ECtHR, namely, that it is not limited to the appointment of an interpreter: they must also ensure the adequacy of interpretation. 33 Disregarding this obligation constitutes a violation of the right to a fair trial. 34 The Court – while adopting the ECtHR's reasoning 35 – went even further in specifying the obligations of the competent authorities in this regard: it noted that ensuring the quality of interpretation can only be achieved if the national courts have access to information relating to the selection and appointment procedure for independent translators and interpreters. 36 This can be classified as a standard of protection for the quality of interpretation provided to the suspect or the accused in criminal procedures.
This answer of the Court is interesting for more than one reason. First, this standard contributes to the uniformization of the content of the right to an interpreter and translator in every Member State. This case shed light on the fact that, indeed, the criminal procedure codes of Member States still differ in many aspects, including but not limited to subsequent control of the quality of translation provided to the suspect or the accused. According to this standard, criminal justice authorities – mainly courts – will be tasked with effective scrutiny of the selection process of translators and interpreters – a role that should ideally be stipulated in the criminal procedure codes of the Member States. In addition, the Court supplemented the standards of the ECtHR regarding interpretation and translation in criminal proceedings in that it set out a mandatory means of subsequent scrutiny. Should a Member State fail to meet that requirement, that is, to provide the possibility for such subsequent scrutiny, it would violate the right to a fair trial. Last, but not least, it is noteworthy that the ECJ chose to rely directly on ECtHR case law, a willingness already clearly demonstrated in Dorobantu: 37 in both cases, the ECJ saw no need to rely on the general principles of EU law or its own jurisprudence regarding how the ECHR may have an indirect relevance in EU law and opted instead to ‘utilize’ ECtHR case law directly. This can be differentiated from its earlier practice as demonstrated by, for instance, Hauer 38 or Schmidberger, 39 where the ECJ refers to the ECHR via the ‘medium’ of the general principles of EU law. This shows – at the very least – that the ECJ seems to take a different approach to the ECHR and the case law of the ECtHR in connection with criminal cooperation – a field where the case law of the ECJ is not necessarily well established in all aspects, and where specific gaps in EU law may come to light in practice – such as rules on human rights compatible minimum personal space requirements in detention (Dorobantu), or – as in IS – on certain human rights standards of the linguistic assistance provided in criminal procedures. The more direct operationalization of ECtHR case law can also be interpreted – more generally – as the ECJ's willingness to utilize ECtHR case law as a temporary substitute until the formal accession of the EU to the ECHR eventually takes place. 40
In connection with the second part of the first question, the Court also shed light on the complexity of the system of procedural rights created by the directives in question. While the main reason why the fate of the criminal procedure was called into question was the debatable quality of the interpretation, the Court argued for the preclusion of a trial in absentia based on Articles 4(5) and (6)1 of Directive 2012/13 stipulating the prompt and sufficient provision of information to the suspect in a language they understand. 41 Since the fulfilment of this obligation could not be ascertained due to the lack of scrutiny of the linguistic assistance, the Court found that Article 8(2) of Directive 2016/343, setting the criteria for a trial to be continued in absentia cannot be viewed as having been met after the hearing of the suspect. 42 As such, another quality standard can be identified: the lack of scrutiny of the quality of interpretation precludes the continuation of a trial in the absence of the accused since the debatable quality of interpretation calls into question the very act of informing the accused of the criminal charges brought against them, essentially undermining the fairness of the procedure. 43
Apart from the questions relating to EU criminal procedure law, IS is significant in relation to certain aspects of the preliminary ruling procedure. Enshrined in Article 267 TFEU, the preliminary ruling procedure is one of the fundamental pillars of the EU legal order. It has been called the ‘linchpin of integration’, 44 as it is in many ways the most crucial element of the jurisdiction of the ECJ, one that served not only as the means to develop the special principles of EU law (such as direct effect and primacy of application) but at the same time as a vital and effective tool of securing – albeit indirectly – individual rights under EU law. 45 Without this procedure, the uniform interpretation and application of EU law could not be guaranteed, and the judicial review of EU legal acts would be limited to the annulment procedure (Art. 263 TFEU). Preliminary rulings have also been central to the process of the constitutionalization of the EU legal order by judicial means, 46 as many of the principles developed via preliminary rulings were indispensable in crafting the supranational legal system of the EU. 47 It is thus no wonder that preliminary ruling requests which at least partly concern the preliminary ruling procedure itself tend to raise attention – at the ECJ and elsewhere.
The issue raised by the referring Hungarian judge's fourth question was indeed important as it dealt with the limits of the discretion enjoyed by national courts when requesting preliminary rulings. As has been proclaimed many times by the ECJ, it is for the national court and the national court alone to decide whether to initiate this procedure or not. 48 The national court, before which an action has been brought, is in principle solely entitled to decide whether the reference is necessary and what the relevant questions of interpretation (or validity) are. 49 It is not surprising that a question regarding a situation where a court of higher instance can pronounce a request for a preliminary ruling made by a lower court unlawful was held admissible by the ECJ. 50 The reaffirmation of the right of discretion of a national court at any level to decide on the necessity of preliminary rulings without interference by higher courts is not surprising either, as this right that flows directly from the TFEU cannot be called into question by national measures or decisions. It is important to note that the ‘appeal in the interests of the law’ of relevance here does not have any altering effect on the decision of the national court containing the preliminary reference. In this sense, the situation in IS was different from Cartesio (another well-known Hungarian reference from 2008), where the ECJ clearly stated that a situation where an appellate court could prevent the lower court from asking for a preliminary ruling was incompatible with EU law. 51 Nevertheless, the ECJ found in IS that the mere fact that a referring decision can be held to be unlawful will likely dissuade Hungarian courts from exercising this right, as well as undermine the authority of the ECJ's eventual answers to such referrals. 52 This interim conclusion, read together with the principle of primacy, led the Court of Justice to state that referring national courts are to disregard such decisions of higher national courts – even if those courts happen to be national supreme courts tasked, among other things, with ensuring the harmony of national judicial practice. This ruling follows settled case law of the ECJ, according to which any rule of national law preventing the application of the preliminary ruling procedure must be set aside, 53 and national courts are not required to wait for the setting aside of the national rule in question by legislative or other constitutional means. 54
As harsh and sensitive as this may sound, reacting any other way would have meant that the ECJ was not upholding one of the main pillars of the EU legal order but instead helping to chip away at it.
The Court also left no doubt as to the permissibility of disciplinary procedures started on the grounds that a judge has made a reference for a preliminary ruling: building on Miasto Łowicz, 55 such national measures were found by the ECJ to be contrary to Article 267 TFEU.
In recent years, 56 an intensified willingness by the ECJ to involve itself in protecting the rule of law and, more specifically, the independence of judges is perceivable. 57 The judgment in IS continues this line of cases. However, even an increased willingness to this end cannot mean that general questions which are not relevant for adjudicating the underlying national legal dispute can or should be answered by the ECJ. In IS, the Court declared the second and third questions – which concerned the Hungarian judicial system as a whole, including questions about the remuneration of judges – inadmissible, relying in essence on the fact that it was not objectively required to give a ruling on the state of the Hungarian judicial system in general to facilitate the decision on the merits of the main proceedings. 58 Although the ECJ's approach as to who the final umpire of the relevance of preliminary questions is has fluctuated somewhat, especially in earlier years, 59 IS shows a clear confirmation that a connection ratione materiae between the substance of the main proceedings and a provision of EU law (be that even, as in the present case, Article 47 of the Charter or Article 19 TEU) is not in and of itself sufficient to satisfy the precondition of necessity. Similarly, the ECJ stressed already in Miasto Łowicz that the requested preliminary ruling on the interpretation of EU law needed to be necessary to decide the substance of the case before the national court for it to be considered necessary by the ECJ as well. 60 By contrast, the questions raised in the context of A. K. and others did have such relevance. 61 In the latter case, the questions referred to the ECJ concerned the possibility of the disapplication of national law which posed an obstacle to the national court exercising jurisdiction to protect rights under EU law. 62 The ECJ rightly insisted on this differentiation in IS – this interpretation leaves no doubt that the preliminary ruling procedure is not an infringement procedure where a breach of EU law is the only deciding factor: this procedure is first and foremost an indirect way to guarantee the protection of individual rights under EU law at the national level by national courts and authorities. It is interesting to note that not only the Hungarian government but the Commission argued against the admissibility of these questions as well. 63 On a related note, IS reaffirms the settled case law of the ECJ that preliminary references will not be deemed inadmissible for the reason that the decision to refer has been taken in a way that is incompatible with national law governing the organization of courts and their procedure. 64
The Prosecutor General and the Kúria have both issued press releases following the publication of the ECJ judgment. The former chose to take an approach of formalism and avoidance: it emphasized that the appeal in the interest of the law was not lodged against the preliminary ruling request itself but against the (in its view unlawful) suspension of the Hungarian criminal procedure in the case at hand. 65 Of course, with the only reason for the suspension being the request for a preliminary ruling (both contained in the very same court order), it is difficult to see a meaningful difference here. Conversely, the press release of the Kúria posited that the Hungarian supreme court would maintain its previous standpoint, regardless of the ECJ judgment – and further added that it was ‘studying the judgment’ of the ECJ in IS in the light of Decision 2/2019 of the Hungarian Constitutional Court, which made proclamations concerning the binding nature of EU law as it follows from the Fundamental Law of Hungary. 66 One cannot help but be reminded of a similarly laconic press release published by the CJEU following the PSPP-decision of the German Federal Constitutional Court. 67
Concluding remarks
Judicial dialogue within the EU seems to be becoming more and more intensive – and intense. 68 The preliminary ruling is of crucial importance in this respect as well, as the procedure is the most important tool of formal judicial dialogue in the EU, 69 and it is in the interest of both national and European judicial institutions to maintain this procedure as it was intended already when European integration first started: as a procedure to interpret EU law and to guarantee that rights and obligations based on EU law are enforced at the level of national courts. Accordingly, in Case C-564/19 IS, the ECJ reaffirmed its resolve to protect its jurisdiction in interpreting EU law against attempts to constrict the right of lower courts to refer preliminary questions before it and further strengthened its view already shown in Miasto Łowicz that disciplinary proceedings against referring judges constitute a violation of Article 267 TFEU. Such national measures or practice could jeopardize the cooperation between national courts and the ECJ as well as distort their relationship intended by the EU Treaties in terms of competences. 70 It should also be born in mind that the rule of law and judicial independence are cornerstones of the mutual trust concept of EU law – thus deficiencies related to these principles could potentially have a detrimental effect on the functioning the Area of Freedom, Security and Justice as a whole. 71 The ECJ nevertheless steered clear of overstepping the boundaries of what was indeed relevant for deciding the case in the main proceedings.
Finally, the judgment reflects the growing importance of the preliminary ruling procedure in the EU system of criminal cooperation as well as the ECJ's increased direct utilization of ECtHR case law. The standards developed in ECJ case law can contribute to a more uniform application of EU directives aimed at harmonizing criminal procedure law of Member States. In particular, the ECJ has established a more uniform system of control of the quality of translation, which is a welcome addition in the EU's Area of Freedom, Security and Justice, where the number of criminal proceedings in which the defendant is a foreign national and does not speak the official language of the proceedings is high at the very least. 72 It is particularly noteworthy that the ECJ did so not only by simply just relying directly on ECtHR case law but also further developing the standards laid down in it.
