Language proficiency and the right to an interpreter when accessing a fair trial

Abstract

This paper explores the right to an interpreter as part of the right to a fair trial under the United Nations and Council of Europe systems of human rights. The right to an interpreter is guaranteed as part of both Article 14 of the International Covenant on Civil and Political Rights and Article 6 of the European Convention on Human Rights. Under both instruments, accused persons are entitled to a number of minimum rights to ensure a fair trial. Both instruments hold that an accused person has the right to “have the free assistance of an interpreter if he cannot understand or speak the language used in court”. This paper explores what this right means in reality for accused persons who seek to avail themselves of an interpreter. Only those who cannot understand or speak the language of the court are entitled to an interpreter. However, it is not always clear what is meant when we say a person ‘speaks’ or ‘understands’ a language. One may well understand day-to-day interactions in a second language but be completely out of their depth in a formal courtroom setting. Through comparison with the same right under the Statute of Rome, as well analysis of jurisprudence from the Human Rights Committee and the European Court of Human Rights this paper explores the scope of language rights under the right to a fair trial and the implications for access to justice.