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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...

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TEXT

FELIPE VI

KING OF SPAIN

To all who present it and understand it.

Sabed: That the General Cortes have approved and I come to sanction the following organic law:

PREAMBLE

I

This Law is intended to transpose into our internal legislation Directive 2010 /64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation into criminal proceedings and Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings.

The transposition of these Directives, which develop two essential aspects of the defence in criminal proceedings, requires the partial amendment of the Criminal Procedure Law and entails a significant strengthening of the criminal proceedings, by means of a detailed regulation of the right to translation and interpretation in this process and of the right of the accused to be informed about the subject matter of the criminal proceedings in such a way as to permit an effective exercise of the right to defence.

II

As for the content and structure of the Act, it consists of three articles, two additional provisions, one derogating provision and four final provisions.

The structure of the first two articles, which contain amendments to the Criminal Procedure Act, responds to the distinction in the transposition of each of the Directives, in the chronological order of the Directives.

In the first article, which is divided into nine sections, the reform of the Criminal Procedure Law is carried out to implement 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.

In the second article, divided into five paragraphs, the Criminal Procedure Act is amended to incorporate into our internal law Directive 2012/13/EU of the European Parliament and of the Council of 22 May on the the right to information in criminal proceedings.

III

The right to translation and interpretation for persons who do not speak or do not understand the language of the procedure and persons with hearing and deafness disabilities is enshrined in Article 6 of the European Convention of Human Rights, as interpreted by the case law of the European Court of Human Rights. The amendments made to the Criminal Procedure Law will facilitate the application of this right, guaranteeing the right of the accused or accused to interpretation and translation in criminal proceedings, as well as the right to a trial equitable.

The right of the accused or accused to be assisted by an interpreter extends to all the actions in which his presence is necessary, including the police interrogation or the Prosecutor's Office and all the views legal. In order to prepare the defence, it shall also be entitled to serve as an interpreter in communications with its Advocate who are directly related to any questioning or judicial hearing during the proceedings, or to the lodging of an appeal or other procedural requests.

The right to interpretation or translation also requires that you be provided with the translation of the essential documents, or at least the relevant passages of such documents. As stated in Directive 2010 /64/EU, certain documents, such as those for which a person is deprived of his or her freedom, the letters of charge or the judgments, are always regarded as essential documents, so that they are have expressly stated in point (d) of paragraph 1 of the new Article 123 that it is introduced into the Criminal Procedure Act.

The new regulation states that translation must be done within a reasonable time, in line with the requirements of Article 3 of the European Directive, and the use of new technologies is made possible for the purpose of interpretation, unless the physical presence of the interpreter is necessary to safeguard the rights of the accused or accused.

The right to appeal is also guaranteed for the refusal of the right to interpretation or translation, by means of the obligation to document in writing the court decision, as well as the possibility of making Record the protest during the oral trial, which will allow the interposition of the corresponding resources.

Judicial interpreters or translators shall be appointed among those listed in the lists drawn up by the Administration, making it easier in cases of urgency than another person who is aware of the language, who is considered to be qualified for this task, it can be enabled as an interpreter or eventual translator. This whole system is reinforced by enabling the Judge or the Prosecutor's Office to carry out the necessary checks in those cases where he appreciates that the translation or interpretation does not provide sufficient guarantees.

IV

The right to information of persons arrested and charged or accused in criminal proceedings is based on the provisions of Articles 5 and 6 of the European Convention on Human Rights, according to the interpretation made by the European Court of Human Rights. The amendments made to the Criminal Procedure Act will facilitate the application of this right, guaranteeing the right to freedom and the right to a fair trial. In the case of persons who are deaf users of the sign language, Law 27/2007 of 23 October, recognizing the languages of Spanish signs and regulating the means of support for the oral communication of deaf persons, with disabilities hearing and deafociegas, states in its articles 12.2 and 21.2 that within the Administration of Justice and Penitentiary the appropriate conditions will be promoted, such as training and availability of sign language interpreter services and/or in the languages of the Autonomous Communities ' own signs, if any, as well as the training and availability of means of support for oral communication.

For this reason, the current article 118 of the Law on Criminal Procedure, in which the right of defense is regulated, is amended clearly and accurately states that every person who is charged with a punishable act shall be entitled to to be informed of the facts of the case, as well as of any relevant changes in the subject matter of the investigation and in the facts charged; of the right to examine the proceedings in good time to safeguard the right of defence; the right to freely designate a lawyer; the right to apply for free legal assistance; the procedure to do so and the conditions for obtaining it; the right to free translation and interpretation; the right to remain silent and to make no statement if you do not wish to do so and the right not to declare against yourself and not to confess culprit.

The right to information of detainees or prisoners is regulated in Article 520 of the Criminal Procedure Act. This provision already contains the majority of rights referred to in Directive 2012/13/EU of 22 May concerning the right to information in criminal proceedings. However, it was necessary to complete the catalogue of rights in order to adapt it to the requirements of the European legislation, making explicit mention, inter alia, of the right of access to the elements of the actions which are essential to challenge the the legality of the detention or deprivation of liberty, and the right to be assisted free of charge by an interpreter, as well as to the information of the maximum legal period of duration of the detention until the provision of the judicial and judicial authority the procedure by which you can challenge the legality of your detention.

Special mention deserves the right of access to the file. When it comes to imputed, it has been considered appropriate to incorporate them in Article 118 of the Criminal Procedure Law and in Article 302 of the Law of Criminal Procedure, exceptions to this right have been included. As has been anticipated, in the cases of the detainee or private of freedom, the right of access has been included in article 520 of the Law of Criminal Procedure and its scope is limited, by the requirement of European regulations, to those elements of the actions that are essential to challenge the legality of detention or deprivation of liberty. It is a matter of providing, prior to the interposition of the appeal, only that information that is fundamental to make it possible to assess the legality of detention or deprivation of liberty.

As to the way in which information is to be provided, an adequate guarantee of the rights set out in Articles 5 and 6 of the European Convention on Human Rights requires that it be provided in an accessible language, adapted to age, degree of maturity, disability or any other personal circumstances of the accused or detained. In addition, in the case of detainees or prisoners, information on the rights to which they are held must always be made in writing.

Also, the time at which the information is provided constitutes a mechanism for guaranteeing the rights cited. Thus, the accused must receive it without undue delay and, in the cases of the detainees or prisoners, the information must be provided immediately.

V

In order to adapt the rating to act as an interpreter in the oral trial, Article 231 (5) of the Organic Law 6/1985, of July 1, of the Judicial Branch is amended, introducing a referral to the regulatory regulations for each process.

VI

With the regulatory changes operated, a uniform level of protection of procedural rights will be ensured in the various countries of the European Union and, with this, confidence will be strengthened among the Member States of the European Union. European Union, which is essential for strengthening the instruments of mutual recognition that are increasingly becoming an essential tool for cooperation.

This Law therefore becomes an instrument for the overall improvement of our criminal process from the perspective of the accused or accused, detained or imprisoned, inciting in essential aspects of the right to the defense.

VII

This Law directly affects article 24 of the Spanish Constitution, introducing legal, procedural and substantive changes that affect the own field of organic laws, in the development of fundamental rights and public freedoms collected in this constitutional precept.

VIII

The Law incorporates a final provision referring to the creation of a Registry of Judicial Translators and Interpreters, as a necessary mechanism to ensure the proper implementation of this task, which is fundamental to the development of the processes, by these professionals. This is also a result of the content of Directive 2010 /64/EU on the right to interpretation and translation in criminal proceedings. The rules of operation of this Registry of Judicial Translators and Interpreters, which will be created by Law, will be established regulatively.

Article first. Amendment of the Law on Criminal Procedure for the transposition 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.

The Criminal Procedure Act is amended as follows:

One. The heading of Title V of the First Book is amended, which is worded as follows:

"From the right to defense, to free legal assistance and to translation and interpretation in criminal trials."

Two. A new Chapter I, including the existing Articles 118 to 122, is inserted in Title V of the First Book, with the following heading:

"From the right to defense and free legal assistance."

Three. A new Chapter II, consisting of new Articles 123 to 127, is inserted in Title V of the First Book, with the following heading:

"From the right to translation and interpretation."

Four. A new Article 123 is introduced, with the following wording:

" Article 123.

1. Defendants or accused persons who do not speak or understand the Spanish or the official language in which the action is carried out shall have the following rights:

(a) Right to be assisted by an interpreter who uses a language that he understands during all the actions in which his or her presence is necessary, including the police interrogation or the Prosecutor's Office and all the views judicial.

(b) the right to serve as an interpreter in discussions with his or her lawyer and who are directly related to their subsequent questioning or taking of a statement, or which are necessary for the submission of an appeal or for other procedural requests.

c) Right to the interpretation of all proceedings of the oral trial.

(d) Right to the written translation of documents which are essential to ensure the exercise of the right to defence. In any case, the decisions to be taken by the defendant's prison, the indictment and the judgment must be translated.

e) Right to submit a reasoned request for a document to be considered essential.

The costs of translation and interpretation resulting from the exercise of these rights will be borne by the Administration, regardless of the outcome of the process.

2. In the event that the simultaneous interpretation is not available, the interpretation of the proceedings of the oral judgment referred to in point (c) of the preceding paragraph shall be performed by means of a consecutive interpretation in such a way as to ensure sufficient defence of the accused or accused.

3. In the case of point (d) of paragraph 1, the translation of the passages of the essential documents which, at the discretion of the Judge, the Court or the competent official, is not necessary for the accused or accused person to be known to the facts that are imputed to you.

Exceptionally, the written translation of documents may be replaced by an oral summary of their content in a language that they understand, where the defence of the accused or accused is also sufficiently guaranteed.

4. The translation must be carried out within a reasonable time and from the time the Court or the Judge or the Prosecutor's Office agrees, the procedural time limits that apply shall be suspended.

5. The assistance of the interpreter may be provided by means of videoconferencing or any means of telecommunication, unless the Court or the Judge or the Prosecutor, on his own initiative or at the request of the person concerned or his defence, agrees to the physical presence of the interpreter to safeguard the rights of the accused or accused.

6. Oral or sign-language interpretations, with the exception of those referred to in paragraph 1 (b), may be documented by means of the audiovisual recording of the original demonstration and of the interpretation. In cases of oral translation or in the language of signs of the content of a document, the copy of the translated document and the audiovisual recording of the translation shall be joined. If no recording equipment is available, or is not deemed appropriate or necessary, the translation or interpretation and, where appropriate, the original declaration, shall be documented in writing. '

Five. A new Article 124 is introduced, with the following wording:

" Article 124.

1. The translator or interpreter shall be appointed from among those who are included in the lists drawn up by the competent authority. Exceptionally, in cases requiring the urgent presence of a translator or interpreter, and the intervention of a translator or a judicial interpreter entered in the lists drawn up by the Administration, where appropriate, may not be possible. in accordance with the provisions of paragraph 5 of the foregoing Article, a person may be entitled as an interpreter or a judicial translator to another person who is aware of the language used which is deemed to be capable of carrying out that task.

2. The designated interpreter or translator shall respect the confidential nature of the service provided.

3. Where the Court, the Judge or the Prosecutor's Office, on its own initiative or at the request of a party, appreciates that the translation or interpretation does not provide sufficient guarantees of accuracy, it may order the necessary checks to be carried out and, if appropriate, order the appointment of a new translator or interpreter. In this sense, deaf or hearing impaired persons who appreciate that the interpretation does not provide sufficient guarantees of accuracy, may request the appointment of a new interpreter. "

Six. A new Article 125 is introduced, with the following wording:

" Article 125.

1. Where circumstances of which the need arises for the assistance of an interpreter or translator, the President of the Court or the Judge, or at the request of the lawyer of the accused or accused person, shall check whether the latter is necessary knows and understands sufficiently the official language in which the action is to be carried out and, where appropriate, order the name of an interpreter or translator in accordance with the provisions of the previous Article and determine which documents must be translated.

2. The decision of the Judge or Court to refuse the right to interpretation or the translation of any document or passage of the same which the defence considers essential, or for which the complaints of the defence are rejected in relation to the lack of quality of interpretation or translation, will be documented in writing.

If the decision has been taken during the oral trial, the defense of the accused or accused person will be able to record in the minutes their protest.

Against these court decisions, recourse may be brought in accordance with the provisions of this Law. "

Seven. A new Article 126 is introduced, with the following wording:

" Article 126.

The waiver of the rights referred to in Article 123 shall be express and free, and shall be valid only if it occurs after the accused or accused has received sufficient and accessible legal advice from him. allow you to be aware of the consequences of your resignation. In any event, the rights referred to in Article 123 (1) (a) and (c) may not be waived. "

Eight. A new Article 127 is introduced, with the following wording:

" Article 127.

The provisions contained in the preceding articles are equally applicable to persons with sensory disabilities, who may have the means to support oral communication. "

Nine. A new paragraph 3 is inserted in Article 416, with the following wording:

" 3. Translators and interpreters of the conversations and communications between the accused, prosecuted or accused and the persons referred to in the previous paragraph, in relation to the facts to which their translation or interpretation is concerned. "

Article 2. Amendment of the Law on Criminal Procedure for the transposition of Directive 2012/13/EU of the European Parliament and of the Council of 22 May concerning the right to information in criminal proceedings.

The Criminal Procedure Act is amended as follows:

One. Article 118 is amended as follows:

" Article 118.

1. Any person who is accused of a punishable act may exercise the right of defence, acting in the proceedings of any person who has been, since being informed of his existence, the subject of detention or of any other precautionary measure. has agreed to its processing, to which effect it shall be instructed, without undue delay, of the following rights:

(a) Right to be informed of the facts that are imputed to you, as well as any relevant changes in the object of the investigation and the facts imputed. This information shall be provided with the degree of detail sufficient to allow for an effective exercise of the right to defence.

b) Right to examine the proceedings in good time to safeguard the right of defence.

(c) the right to appoint a lawyer without prejudice to Article 527 (a).

d) Right to request free legal assistance, procedure to do so, and conditions to obtain it.

e) Right to free translation and interpretation in accordance with the provisions of Articles 123 to 127.

f) Right to remain silent and not to render a statement if you do not wish to do so.

g) Right not to declare against yourself and not to confess guilty.

The information referred to in the preceding paragraph shall be provided in a language which is understandable and accessible to the person concerned. For these purposes, information shall be adapted to your age, degree of maturity, disability and any other personal circumstances that you may derive from a modification of the ability to understand the extent of the information provided to you.

2. In order to act in the process, the persons concerned must be represented by Procurator and defended by Advocate, appoint them ex officio when they have not appointed them by themselves and request it, and in any case, if they have no aptitude legal to verify it.

If they have not appointed a Procurator or Advocate, they will be required to verify or appoint them, if required, not to appoint them, when the cause comes to a state where the advice of those or to try some resource that would make it essential to act.

3. The admission of a complaint or complaint and any procedural action resulting from the charging of a crime against certain persons or persons shall be immediately brought to the attention of those who are allegedly responsible. "

Two. Article 302 is amended as follows:

" Article 302.

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

However, if the offence is public, the Judge of Instruction may, on a proposal from the Prosecutor's Office, of any of the parties personally or ex officio, declare it, by order, in whole or in part secret for all parts personas, for time not exceeding one month when necessary for:

(a) avoid a serious risk to the life, liberty or physical integrity of another person; or

b) prevent a situation that could seriously compromise the outcome of the investigation or process.

The secrecy of the summary must necessarily be raised at least ten days before the summary is concluded.

The provisions of this Article shall be without prejudice to the provisions of the second subparagraph of Article 505 (3). "

Three. Article 505 (3) is amended as follows:

" 3. In such a hearing, if the Prosecutor's Office or an accusing party requests that the provisional imprisonment of the imputed or his provisional bail be imposed, the persons concerned may make representations and propose the means of proof which can be practiced on the spot or within the seventy-two hours referred to in the previous paragraph.

The defendant's lawyer shall, in any event, have access to the elements of the proceedings which are essential to challenge the deprivation of liberty of the defendant. "

Four. Article 520 (2), (3) and (5) are amended and a new paragraph 2a is inserted, all in accordance with the following wording:

" 2. Any person arrested or detained shall be informed in writing, in a simple and accessible language, in a language which he understands and immediately, of the facts which are attributed to him and the reasons for his deprivation of liberty, as well as of the rights that assist you and especially the following:

a) Right to keep silent, not declaring if you do not want, not to answer some or some of the questions asked of you, or to state that you will only declare before the Judge.

b) Right not to declare against yourself and not to confess guilty.

(c) the right to appoint a lawyer and to request his presence to attend the police and judicial proceedings for a declaration and to intervene in the proceedings for recognition at a wheel for which he is the subject. If the detainee or prisoner does not appoint a lawyer, the appointment shall be made.

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

(e) the right to be brought to the attention of the person or person who wishes, the fact of the detention and the place of custody in which he is at any time. Foreigners will have the right to have the above circumstances communicated to the Consular Office of their country.

(f) the right to be assisted free of charge by an interpreter, in the case of a foreigner who does not understand or does not speak the Spanish or the official language of the performance in question, or of deaf or hearing-impaired persons, as well as other people with language difficulties.

g) the right to be recognized by the medical examiner or his or her legal substitute and, failing that, by the institution in which it is located, or by any other dependent of the State or other Public Administrations.

h) Right to request free legal assistance, procedure to do so, and conditions to obtain it.

You will also be informed of the maximum legal period of duration of detention pending the provision of the judicial authority and the procedure by which you can challenge the legality of your detention.

When a statement of rights is not available in a language that includes the detainee, you will be informed of your rights through an interpreter as soon as possible. In this case, the written declaration of rights in a language which it understands shall be delivered, subsequently and without undue delay.

In all cases, the detainee will be allowed to retain in his possession the written declaration of rights throughout the time of detention.

2a. The information referred to in the preceding paragraph shall be provided in a language which is understandable and accessible to the person concerned. For these purposes, information shall be adapted to your age, degree of maturity, disability and any other personal circumstances that may result in a limitation of the ability to understand the extent of the information provided to you.

3. If it is a minor or a person with a judicially supplemented capacity, the authority in whose custody the detainee or prisoner is held shall notify the circumstances of paragraph 2 (e) to those who exercise the parental authority, the guardianship or the guardianship of the same and, if they are not found, will immediately be given to the Prosecutor's Office. If the detainee or with a judicially completed capacity abroad is foreign, the fact of the detention shall be notified to the Consul of his/her country of office. "

" 5. However, the detainee or prisoner may waive the mandatory assistance of a lawyer if his detention is for facts liable to be classified exclusively as offences against the safety of the traffic, provided that he has been provided with clear and sufficient information in a simple and comprehensible language on the content of the right and the consequences of the waiver. The detainee may revoke his resignation at any time. "

Five. Article 775 is amended as follows:

" Article 775.

1. At the first hearing, the Judge shall inform the defendant, in the most comprehensible form, of the facts which he is accused of. In advance, the Registrar shall inform him of his rights, in particular those listed in Article 118 (1), and shall require him to designate an address in Spain in which the notifications are to be made, or a person who received on its behalf, with the warning that the summons made at that address or to the designated person shall permit the conclusion of the judgment in its absence in the cases provided for in Article 786.

Both before and after making a statement, you will be allowed to hold a reservation with your Advocate, without prejudice to the provisions of Article 527 (c).

2. Where the result of the proceedings is brought about by a significant change in the object of the investigation and the facts imputed, the Judge shall promptly inform the person concerned.

This information may be provided by a succinct presentation that is sufficient to permit the exercise of the right to a defence, communicated in writing to the Advocate for the defendant. "

Article 3. Amendment of the Organic Law 6/1985, of July 1, of the Judiciary.

Article 231 (5) of the Organic Law 6/1985, of July 1, of the Judicial Branch is amended, which is worded as follows:

" 5. The enabling as an interpreter in oral or sign language performances shall be performed in accordance with the provisions of the applicable procedural law. '

Additional disposition first. Media.

The measures included in this rule may not result in an increase in staff, remuneration or other personnel costs.

Additional provision second. Training.

The Ministry of Justice, the General Council of the Judiciary, the Attorney General of the State, and the Autonomous Communities, within the scope of their respective powers, will ensure the formation of judges, prosecutors, and personnel. the service of the Administration of Justice participating in criminal proceedings that pays attention to the particularities of the communication with the help of interpreter.

Single repeal provision. Regulatory repeal.

The provisions of this Law are repealed as many provisions of the same or lower rank.

Final disposition first. Official registration of judicial translators and interpreters.

The Government will present, within a maximum period of one year from the publication of this Law, a Bill of Law for the creation of an Official Registry of Translators and Judicial Interpreters for the registration of all those professionals. they have the right to enable and qualify them, in order to draw up the lists of translators and interpreters referred to in Article 124 of the Criminal Procedure Act. The registration in this Official Register shall be a necessary requirement for the performance of these professionals by the appointment of the Judge or the Registrar before the Administration of Justice and in the law of the police in which they are required. presence, without prejudice to any exceptions to be made.

For the purposes of registration in this Official Register, the Ministry of Justice may request the fulfilment of other requirements other than training or qualifications which are regulated in accordance with the language in question. These requirements shall be proportionate and non-discriminatory and may be based on the experience of the professional, on the additional knowledge of procedural or legal matters, and on the performance of the deontological duties provided for in the law.

The regulatory standard for this Official Register will determine its operating conditions and terms.

Final disposition second. Precepts with the nature of ordinary law.

Articles 124, 125, 127, 302, 416.3, and 775 of the Criminal Procedure Act, as well as the final provision of the present Organic Law, have an ordinary nature.

Final disposition third. Competence title.

This Organic Law is issued under the terms of Article 149.1.1. and 6. of the Constitution, which recognize the State exclusive competence for the regulation of the basic conditions that guarantee the equality of all Spaniards in the exercise of rights, and in matters of procedural law, respectively.

Final disposition fourth. Entry into force.

1. The first article shall enter into force in the month of its publication in the Official Gazette of the State.

2. The remaining provisions of this Organic Law shall enter into force six months after its publication in the Official Gazette of the State.

Therefore,

I command all Spaniards, individuals and authorities, to keep and keep this organic law.

Madrid, April 27, 2015.

FELIPE R.

The President of the Government,

MARIANO RAJOY BREY