Law 5/2015, Of 27 April, By Amending The Law On Criminal Procedure And The Organic Law 6/1985, Of 1 July, The Judicial Branch, To Transpose The Directive 2010/64/eu, October 20, 2010, Concerning The Right To Inte...

Original Language Title: Ley Orgánica 5/2015, de 27 de abril, por la que se modifican la Ley de Enjuiciamiento Criminal y la Ley Orgánica 6/1985, de 1 de julio, del Poder Judicial, para transponer la Directiva 2010/64/UE, de 20 de octubre de 2010, relativa al derecho a inte...

Read the untranslated law here: http://www.boe.es/buscar/doc.php?id=BOE-A-2015-4605

FELIPE VI KING OF SPAIN to all that the present join together and act.

Know: That the Cortes Generales have approved and I come in to sanction the following law: PREAMBLE I this law aims at transposing into our domestic of Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010, on the right to interpretation and to translation in criminal proceedings and the directive 2012/13/EU of the European Parliament and of the Council , May 22, 2012, concerning the right to information in criminal proceedings.

The transposition of these directives, that develop two aspects essential of the defense in the process criminal, requires the modification partial of it law of prosecution Criminal and entails an important reinforcement of them guarantees of the process criminal, through a regulation detailed of the right to it translation e interpretation in this process and of the right of the accused to be informed on the object of the process criminal so allow an effective exercise of the right to the defense.

(II) as to the content and structure of the Act, consists of three articles, two additional provisions, a repealing provision and four final provisions.

The structure of the first two articles, containing amendments to the Criminal Procedure Act, responds to the distinction in the transposition of the directives, the chronological order of them.

In the first article, which is divided into nine sections, is carried out the reform of the Criminal Procedure Act to proceed with the transposition of the directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010, on the right to interpretation and to translation in criminal proceedings.

In the second article, divided into five sections, amending the Act of prosecution Criminal to incorporate into our domestic law the 2012/13/EU directive of the European Parliament and of the Council of 22 may, concerning the right to information in criminal proceedings.

III the right to translation and interpreting for those who do not speak or understand the language of the proceedings, and people with hearing disability and Deafblind, is enshrined in article 6 of the European Convention on human rights, according to the interpretation made by the jurisprudence of the European Court of human rights. The modifications introduced in the law of prosecution Criminal will facilitate the application of this right, guaranteeing the right of the accused or accused to the interpretation and translation in them processes criminal, as well as the right to a trial equitable.

The right of the accused or defendant to be assisted by an interpreter extends to all proceedings in which it is necessary their presence, including the interrogation police or by the public prosecutor's Office and all hearings. In order prepare it defense, also will have right to serve is of an interpreter in the communications with your lawyer that saved relationship direct with any interrogation or view judicial during the process, or with the presentation of a resource u others requests procedural.

The right to interpretation or translation required to provide him with the translation of essential documents, or at least the relevant passages in those documents. Tal_y_como indicated in Directive 2010/64/EU, certain documents, such as the resolutions that depriving a person of his liberty, the writings of indictments or sentences, are considered always essential documents, by what has been expressly collected in point d) of paragraph 1 of new article 123 which is introduced in the Criminal Procedure Act.

The new regulation collects that the translation must make is in a term reasonable, in line with them demands of the article 3 of the directive European, and is enables the use of them new technologies for make it interpretation, unless it presence physical of the interpreter is required for safeguard them rights of the accused or accused.

The right to appeal against the decision by which is denied the right to interpretation or translation, through the obligation to document in writing the Court's decision, as well as the possibility to place on record the protest during the trial, is also guaranteed which will allow the interposition of the corresponding resources.

Them interpreters or translators judicial will be designated between those included in them listed made by the Administration, facilitating is in cases of urgency that another person knowledgeable of the language, that is deems qualified for this task, can be enabled as interpreter or translator eventually. This whole system is reinforced by enabling the judge or the public prosecutor's Office to carry out the necessary checks in those cases in which to appreciate that the translation or interpretation do not offer sufficient guarantees.

IV the right to the information of the people detained and of them accused or accused in the process criminal is based in it willing in them articles 5 and 6 of the Convention European of rights human, according to the interpretation made by the Court European of rights human. The amendments made to the Criminal Procedure Act will facilitate the implementation of this right, guaranteeing the right to freedom and the right to a fair trial. In the case of persons deaf users of sign language, the law 27/2007, of October 23, why are recognized the Spanish sign languages and regulate the means of support for oral communication of deaf with hearing disability and Deafblind people, set out in its articles 12.2 and 21.2 that within the administration of Justice and prison conditions will be promoted , such as training and availability of services of interpreter of language of signs Spanish and/or in the languages of signs own of them communities autonomous if them had, as well as the training and availability of means of support to the communication oral.

For this reason, amending the current article 118 of the law of Criminal Procedure, which regulates the right of defence, pointing out clearly and accurately that anyone that imputing a punishable act shall be entitled to be informed of the facts that is charged, as well as any change relevant to the subject of the investigation and the facts imputed; the right to examine the proceedings advance to safeguard the right of defence; the right to freely appoint lawyer; of the right to request assistance legal free, procedure for making it and conditions to obtain it; the right to translation and interpretation; the right to remain silent and not testify if you don't want to do it and the right to not testify against himself and not confess guilty.

The right to information of the detainees or prisoners is regulated in article 520 of the Criminal Procedure Act. This precept already contains most of the rights to which refers the 2012/13/EU directive, of 22 may, concerning the right to information in criminal proceedings. Now, it was necessary to complete the catalogue of rights to adapt it to the postulates of the European regulations, making express mention, among others, the right of access to the elements of the actions that are essential to challenge the legality of detention or deprivation of liberty, and the right to be assisted free of charge by an interpreter, as well as the information of the legal maximum period of duration of the arrest to the making available of the judicial authority and procedure by means of which can challenge the legality of their detention.

Special mention deserves the right of access to the file. When it's charged, incorporation in article 118 of the law of Criminal Procedure has been considered suitable and in its article 302 exceptions to this right have been collected. As is has advance, in them cases of the arrested or private of freedom, the right of access is has collected in the article 520 of the law of prosecution Criminal and its scope is limited, by requirement of the normative European, to those elements of them performances that are essential for challenge the legality of the detention or deprivation of freedom. It's provide, prior to the filing of the appeal, only information that is essential to make it possible to assess the legality of the detention or deprivation of liberty.

As to the form in which the information is to be supplied, a proper guarantee of the rights included in articles 5 and 6 of the European Convention on human rights requires that it be provided in an accessible language that is adapted to the age, level of maturity, disability or any other personal circumstances of the accused or detainee. In addition, in the cases of detainees or prisoners, information rights that assist him must always be performed in writing.

The time in which the information is provided is also a mechanism for guaranteeing these rights. Thus, defendants should receive it without undue delay and, in the cases of detainees or prisoners, the information must be provided immediately.

V in order to adapt the empowerment to act as an interpreter in the oral proceedings, amending paragraph 5 of article 231 of the organic law 6/1985, of 1 July, the judiciary, introducing a reference to the regulations for each process.

VI


With them modifications policy operated is will ensure a level uniform of protection of them rights procedural in them different countries of the Union European and, with this, is will strengthen the confidence between them States members of the Union European, that is essential for enhance them instruments of recognition mutual that, of form growing, is are turning in a tool essential of cooperation.

This law becomes, therefore, an instrument of overall improvement of our process criminal from the perspective of the defendant or accused, detainee or prisoner, with a focus on essential aspects of the right to a defence.

VII. this law directly impacts article 24 of the Spanish Constitution, introducing legal, procedural and substantive changes that affect the scope of organic laws, developing fundamental rights and liberties collected in this constitutional precept.

VIII. the Act incorporates a final provision which refers to the creation of a registry of judicial interpreters and translators, as necessary to ensure the proper accomplishment of this task, which is essential for the development of processes, by these professionals. Is is of a performance derived also from the content of the directive 2010 / 64 / EU, on the right to interpretation and to translation in them processes criminal. The rules of operation of this register of translators and court interpreters, to be created by law, shall be established by law.

The first article. Modification of the law on Criminal Procedure, for the transposition of the directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010, on the right to interpretation and to translation in criminal proceedings.

The law of procedure Criminal is modified in the following terms: one. Amending the heading of title V of the first book, which is worded in the following way: «of the right to defence, legal aid and translation and interpretation in criminal trials."

Two. Is introduced in title V of the first book a new chapter I, in which are included the current articles 118 to 122, with the following header: "of the right to defense and legal aid."

3. Title V of the book first enters a new chapter II, consisting of the new articles 123 to 127, with the following header: "of the right to translation and interpretation."

Four. It introduces a new article 123, with the following wording: «article 123.

(1. them accused or accused that not speak or understand the Castilian or the language official in which is develop the performance will have them following rights: to) right to be assisted by an interpreter that use a language that understand during all them performances in that is required his presence, including the interrogation police or by the Ministry Fiscal and all them views judicial.

(b) right to make use of interpreter in talks to keep with your lawyer and having direct relationship with his subsequent interrogation or taking of statement, or that may be necessary for the filing of an appeal or for other procedural requests.

(c) right to the interpretation of all the proceedings of the trial oral.

(d) right to the written translation of documents that are essential to ensure the exercise of the right to defence. The resolutions agreed by the imprisonment of the accused, must be translated, in any case, the letter of accusation and judgement.

(e) right to submit a reasoned request for a document is deemed essential.

Translation and interpretation costs resulting from the exercise of these rights shall be borne by the Administration, regardless of the outcome of the process.

2. in the case that not available the service of simultaneous interpretation, the interpretation of the actions of the trial referred to in point (c)) of the previous paragraph will be made by a consecutive interpreting so be sufficiently ensured the defence of the accused or defendant.

(3. in the case of the letter d) of the paragraph 1, may dispense with is of the translation of them passages of them documents essential that, to criterion of the judge, court or official competent, not are necessary so the accused or accused know them made that is you charged.

Exceptionally, the written translation of documents may be replaced by an oral summary of its contents in a language which they understand, when in this way also to ensure enough defense of the accused or defendant.

4. the translation must be performed within a reasonable time and since he agreed in part of the Court or judge or the public prosecutor's Office will be in abeyance procedural deadlines which are applicable.

5. the assistance of the interpreter may be by means of videoconference or any means of telecommunication, unless the Court or judge or the Prosecutor, ex officio or at the request of the person concerned or his defense, agreed the physical presence of the interpreter to safeguard the rights of the accused or defendant.

6 interpretations oral or sign language, with the exception of those provided for in point (b)) of paragraph 1, may be documented by the audiovisual recording of the original demonstration and interpretation. In cases of oral translation or sign of the contents of a document language, will join the Act copy of audiovisual recording of the translation and the translated document. «If recording equipment is not available, or not it considers convenient or necessary, translation or interpretation and, where appropriate, the original declaration, will be documented in writing.»

5. It introduces a new article 124, with the following wording: «article 124.

1. the translator or court interpreter will be appointed from among those who are included in the lists drawn up by the competent authority. Exceptionally, in those alleged that require the presence urgent of a translator or of an interpreter, and not is possible the intervention of a translator or interpreter judicial registered in them lists elaborate by the Administration, in its case, according to it willing in the paragraph 5 of the article previous, is may enable as interpreter or translator judicial eventually to another person knowledgeable of the language employee that is deems trained for the performance of such task.

2. the interpreter or translator appointed shall respect the character confidential of the service provided.

3. when the Court, the judge or the public prosecutor, ex officio or at the request of part, appreciate that the translation or interpretation do not offer assurances of accuracy, it may require the completion of the necessary checks and, where appropriate, order the appointment of a new translator or interpreter. In this sense, the deaf or hearing impaired people who appreciate that interpretation does not offer assurances of accuracy, may apply for the designation of a new interpreter.»

6. It introduces a new article 125, with the following wording: «article 125.

1. when put clear circumstances which might arise the need of the assistance of an interpreter or translator, the President of the Court or the judge, ex officio or at the request of the lawyer of the accused or defendant, will check if it knows and understands enough the official language in which to develop the performance and, if , will order that is name an interpreter or a translator according to it willing in the article earlier and will determine what documents must be translated.

2. the decision of the judge or court that is denied the right to interpretation or translation of any document or passage thereof deemed essential by the defense, or which are rejected defense complaints in relation to the lack of quality of the interpretation or translation, will be documented in writing.

If the decision had been taken during the trial, the defense of the accused or defendant may be included on the record their protest.

Against these court decisions you can appeal is in accordance with the provisions of this law.»

Seven. It introduces a new article 126, with the following wording: «article 126.

Renunciation of the rights referred to in article 123 shall be expressly and free, and will only be valid if it occurs after the accused or defendant has received sufficient and accessible legal advice allowing you to have knowledge of the consequences of his resignation. «(En todo caso, los derechos a los que se refieren las letras a)) and (c) of paragraph 1 of article 123 shall not be waived.»

8. It introduces a new article 127, with the following wording: «article 127.

The provisions contained in the preceding articles apply equally to persons with sensory disabilities, who will be without means of support for oral communication.»

9. It introduces a new paragraph 3 in article 416, with the following wording: «3. translators and interpreters of the conversations and communications between the accused, prosecuted or charged and persons referred to in the preceding paragraph, with regard to the facts that its translation or interpretation were concerned.»

Second article. Modification of the law of prosecution Criminal for the transposition of the directive 2012 / 13 / EU, of the Parliament European and of the Council, of 22 of mayo, relative to the right to the information in them processes criminal.


The law of procedure Criminal is modified in the following terms: one. Amending article 118, which is worded as follows: «article 118.

1. all person to who is imputing an act punishable may exercise the right of Defense, acting in the procedure any that this is, since is you communicate its existence, has been object of detention or of any other measure precautionary or is has agreed its processing, to whose effect is you instruct, without takes unjustified, of them following rights (: a) right to be informed of the facts that is charged, as well as any relevant changes in the object of research and the facts imputed. This information will be provided with the grade of detail sufficient to allow an exercise effective of the law to the defense.

(b) right to examine actions advance to safeguard the right of defence.

((c) right to appoint lawyer freely, without prejudice to the provisions of the letter to) of the 527 article.

(d) right to free legal assistance, procedure and conditions to obtain it.

(e) right to translation and interpretation free of conformity with it willing in those articles 123 to 127.

(f) right to remain silent and not testify if you don't want to do it.

(g) right to not testify against himself and not confess guilty.

The information to is concerns the paragraph above is will facilitate in a language understandable and that is accessible to the accused. For this purpose information will be adapted to their age, level of maturity, disability and any other personal circumstances which may arise a modification of the capacity to understand the scope of the information provided you.

2. to act on the process, stakeholders must be represented by an attorney and defended by Attorney, appointing them ex officio when they had not appointed them by themselves and request it, and in any case, when they had no legal ability to verify it.

If not they had appointed attorney or lawyer will require them so check it or appoint ex officio, if required, not appoint them, when the cause to state that you need the advice of those or have to try some resource that would make it essential to his performance.

«3. the admission of denounces or complaint and any action procedural of which is the imputation of a crime against person or people certain, will be put immediately in knowledge of them allegedly responsible.»

Two. Amending article 302, which is worded as follows: «article 302.

The parties may take cognizance of the proceedings and intervene in all criminal procedure.

Still, if the crime is public, can the judge of instruction, on the proposal of the public prosecutor, of any of the parties or ex officio, declare it, by order, total or partially secret for all the parties, for not more than one month time when necessary for: to) avoid a serious risk to the life, liberty or physical integrity of another person; or (b) prevent a situation that could compromise in a serious way the result of the investigation or process.

The secret of the summary must necessarily win at least ten days prior to the conclusion of the proceedings.

«It willing in this article are understood without prejudice of it planned in the paragraph second of the paragraph 3 of the article 505.»

3. Amending paragraph 3 of article 505 which is worded as follows: «3. in such a hearing, if the public prosecutor or Prosecutor somewhere requests it has ordered the detention of the accused or his probation with bail, may be concurring who make allegations and proposing the means test to practice on the spot or within seventy-two hours before referred to in the preceding paragraph. '

«The lawyer of the accused will have, in all case, access to them elements of them performances that are essential to challenge the deprivation of freedom of the accused.»

Four. Paragraphs 2, 3 and 5 of article 520, amending and introduces a new paragraph 2 bis, all this in accordance with the following wording: «2. A detained or imprisoned person shall be informed in writing, in a simple and accessible language in a language you understand immediately, and the facts that is charged and the motivating reasons for their deprivation of liberty» (, as well as the rights that assist you and especially the following: to) right to remain silent and not stating if you don't want, to not answer any or some of the questions that make you, or to demonstrate that we will only declare before the judge.

(b) right to not testify against himself and not confess guilty.

(c) right to appoint a lawyer and to request your presence to attend police and judicial proceedings for Declaration and intervene in proceedings for recognition at a Conference that is the subject. If the detainee or prisoner does not appoint counsel, be ex officio designation.

(d) right of access to the elements of the actions that are essential to challenge the legality of detention or deprivation of liberty.

(e) right to be put into knowledge of the family or person that you want, the fact of the arrest and the place of custody which is present in every moment. Foreigners are entitled to the previous circumstances to communicate to the Consular Office of your country.

(f) right to be assisted free of charge by an interpreter, when in the case of an alien who does not understand or does not speak the English or the official language of the action in question, or deaf or hearing impaired, as well as other people with language difficulties.

(g) right to be recognized by the medical forensic or its substitute legal and, in its defect, by the of the institution in that is find, or by any other dependent of the State or of other administrations public.

(h) right to request assistance legal free, procedure for doing it and conditions to obtain it.

Also, is you will inform of the term maximum legal of duration of the detention until it put to available of the authority judicial and of the procedure by means of which can challenge the legality of their detention.

When not is available of a declaration of rights in a language that understands the arrested, is you will inform of their rights by means of an interpreter as soon is possible. In this case, must be given, subsequently and without undue delay, the written declaration of rights in a language which they understand.

In all cases be permitted to the detainee to retain in his possession the written declaration of rights during all the time of the arrest.

2 bis. The information referred to in the preceding paragraph shall be provided in understandable language and that is accessible to the accused. For this purpose information will be adapted to their age, level of maturity, disability and any other personal circumstances which may arise a limitation of the ability to understand the scope of the information provided you.

3 If case of a minor of age or person with the ability to prosecute complemented, the authority in whose custody is the detainee or prisoner shall notify the circumstances of the letter e) of paragraph 2 to those exercising parental authority, guardianship or in fact of the same guard and, if they were not found, you will notice immediately to the public prosecutor's Office. «If the arrested less or with capacity judicially complemented out overseas, the made of the detention is will notify of trade to the Consul of their country.»

«5. However, the arrested or prisoner may resign to the mandatory assistance of lawyer if his detention it is by made susceptible of be established exclusively as crimes against the security of the traffic, whenever is you has eased information clear and enough in a language simple and understandable on the content of said right and them consequences of it resigns.» The detainee may revoke his resignation at any time.»

5. Amending article 775, which is worded as follows: «article 775.

1. at the first hearing the judge inform the accused, in the most understandable form, of the facts that is charged. Previously, the court clerk will inform you about their rights, in particular those listed in paragraph 1 of article 118, and will require you to so designate a domicile in Spain in which notifications will be made, or a person who receives them in his name, with the caveat that citation in said service or designee will allow the trial in his absence in the cases referred to in article 786.

Both before and after testifying will be allowed to meet quietly with his lawyer, without prejudice to the provisions of point (c)) of the 527 article.

2. when the outcome of the proceedings will occur any relevant changes in the object of research and the facts imputed, the judge shall promptly it to the accused.

«This information may be provided by a brief exposure which is sufficient to allow the exercise of the right to defence, communicated in writing to the defence counsel of the accused.»

Third article. Modification of the law organic 6 / 1985, of 1 of July, of the power Judicial.

Is modified the paragraph 5 of the article 231 of the law organic 6 / 1985, of 1 of July, of the power Judicial, that is drafted as follows:


«5. the empowerment as an interpreter in the oral proceedings or in sign language will take place in accordance with the provisions of the applicable procedural law.»

Provision additional first. Media.

The measures included in this standard not may assume increase of endowments of personal, nor of remuneration, or of others expenses of personal.

Provision additional second. Training.

The Ministry of Justice, the General Council of the judiciary, the General Prosecutor's Office of the State and the autonomous communities, in the scope of their respective powers, ensure training of judges, prosecutors and staff in the service of the administration of Justice in criminal proceedings that pay attention to the peculiarities of communication with the help of interpreter.

Sole repeal provision. Repeal legislation.

Are repealed few provisions, of equal or lower rank, is opposed to it provisions in this law.

First final provision. Registry officer of judicial interpreters and translators.

The Government will present, within a maximum period of one year from the publication of this law, a draft law for the creation of an official register of translators and court interpreters for the registration of all those professionals who have the appropriate habilitation and qualification, in order to draw up lists of translators and interpreters referred to in article 124 of the law on Criminal Procedure. Registration in this register will be required for the performance of these professionals by designation of the judge or the clerk of the Court in the administration of Justice and the police proceedings where necessary their presence, without prejudice to the exceptions established.

For the purposes of proceed to the registration in this register official, the Ministry of Justice may request the compliance of others requirements different to the training or qualification that is set regulations depending on the language of that is try. These requirements must be provided and non-discriminatory and may be based on the experience of the professional, knowledge additional procedural or legal issues, and ethical duties provided for in the law.

The standard regulatory of this registration official will determine its conditions and terms of operation.

Second final provision. Precepts with nature of ordinary law.

Have nature of law ordinary them articles 124, 125, 127, 302, 416.3 and 775 of the law of prosecution Criminal, as well as the disposal end first of the present law organic.

Third final provision. Skill-related title.

This organic law is issued on the basis of article 149.1.1. 2nd and 6th of the Constitution, which recognizes the State exclusive jurisdiction to regulate the basic conditions that guarantee the equality of all Spaniards in the exercise of the rights and procedural legislation, respectively.

Available to finish fourth. Entry in force.

1. the article first will enter in force to the month of its publication in the «Bulletin official of the State».

2. the remaining provisions of this organic law shall come into force six months of its publication in the "official bulletin of the State.»

Therefore, command to all Spaniards, private individuals and authorities, which have and will keep this organic law.

Madrid, 27 of April of 2015.

PHILIP R.

The President of the Government, MARIANO RAJOY BREY