Actual poor quality of the interpretation depends on the very modest amount provided by the Italian legislation for the remuneration of interpreters: Florence court raises request for a preliminary ruling to the Italian Constitutional court.
Italian Court hopes that the Constitutional Court - possibly, in case of doubt about the interpretation to be given to the aforementioned Directive 2010/64/EU (whether the provisions of the directive should be interpreted as requiring member states to create mechanisms aimed at ensuring a sufficient quality of the interpretation offered in the criminal trial to the accused, also with regard to the remuneration provided for the interpreter, and therefore whether the provisions of the aforementioned directive should be interpreted in the sense that they preclude the existence of national legislation, such as the Italian one, which provides for a reduction in the remuneration for interpreters, after the first two hours of activity, to only 8.15 euros per each vacancy of two hours), subject to a preliminary reference to the Court of Justice of the European Union pursuant to Article 267 TFEU (3) - declare the unlawfulness of the provisions of Art. 4, par. 2, Law No. 319/1980, insofar as, for vacations subsequent to the first, provides for a lower fee than that provided for the first vacancy even in case of application of forecasts
tariffs that are not adjusted in accordance with Article 54, Presidential Decree of the Republic No. 115/2002 (for conflict with the above-mentioned rules of the EU directive and thus with Article 117 Const.).
(automatic machine translation, original here www.gazzettaufficiale.it/eli/id/2024/06/05/24C00120/s1)
Please refer to #NoTranslationNoJustice campaign, info here https://iuventa-crew.org/en/2022/10/01/notranslationnojustice/
No. 100 ORDER (Promotional Act) April 5, 2024 Order dated April 5, 2024, of the Court of Florence on the petition brought by IS.
Court costs - Expenses for consultants and auxiliaries - Fees
due to interpreters and translators for operations performed at the
request of the judicial authority - Provision that, for the
vacations subsequent to the first, establishes a lower fee than
that provided for the first vacancy, even in the case of
Application of tariff forecasts not adjusted in accordance with
of Article 54 of Presidential Decree No. 115 of the Republic.
2002.
- Law No. 319 of July 8, 1980 (Fees payable to experts, expert
technical consultants, interpreters and translators for operations
performed at the request of the judicial authority), Article 4, paragraph 2.
Court costs - Expenses for consultants and auxiliaries - Measure of the fees - Provision that tables relating to time-based fees
identify the hourly fee possibly distinguishing between the
first and subsequent hours, even when applying
tariff forecasts not adjusted in accordance with Article 54 of Decree
of the President of the Republic No. 115 of 2002.
- Presidential Decree No. 115 of May 30, 2002.
(Testo unico delle disposizioni legislative e regolamentari in
the matter of justice expenses), art. 50, paragraph 3.
In the alternative: Justice expenses - Expenses for consultants and
auxiliaries - Provision that, for vacations subsequent to the first,
establishes a lower fee than that provided for the first
vacations, even in the case of application of fee forecasts
not adjusted in accordance with Article 54 of Presidential Decree No. 115 of 2002 - Measurement of fees - Provision that
the tables relating to time-based fees identify the fee
hourly possibly distinguishing between the first and subsequent hours, even in the case of the application of inadequate fee schedules
in accordance with Article 54 of the same Presidential Decree - Limitation, for both norms, to the cases of settlement of the interpreter for interpreting activities carried out in the interest of the accused who does not speak Italian ("alloglotto").
- Law No. 319 of July 8, 1980 (Fees payable to experts, expert
technical consultants, interpreters and translators for operations
performed at the request of the judicial authority), art. 4, par. 2;
Presidential Decree No. 115 of May 30, 2002.
(Testo unico delle disposizioni legislative e regolamentari in
the matter of judicial expenses), art. 50, para. 3.
(OJ No. 23, 5-6-2024 )
COURT OF FLORENCE
First Criminal Section
The judge, Dr. Franco Attina', in the above proceedings
against E. A. E. H. , born in ... on ... ( ...), elect. domiciled with attorney TG of the Florence Bar.
(election and acceptance at the hearing of December 27, 2023); notices pursuant to art. 161 c.p.p. on arrest; defended ex officio by avv. TG of the Florence Bar (appointment at the time of
of arrest); already present, subject for this case to the obligation
to report to the police (order of Dec. 27, 2023);
charged with the following crimes:
(1) for the offense under articles 624 and 625 no. 2) first
hypothesis of the Criminal Code, because, in order to profit for himself or others, took possession of the cash register of the bar ... of street ..., containing about 100 euros in cash, removing it from the premises after breaking into it by forcing the front door with a
burglary tool. With the aggravating circumstance of having committed the act with violence against
things. In ... the ...
2) for the crime referred to in Articles 56, 624 and 625 no. 2)
first hypothesis of the Criminal Code, because, in order to gain profit for himself or others, with burglary tools tried to force the shutter of the kiosk “...” in Square ... thus performing suitable acts directed in
unambiguous manner to take possession of the money and other furniture kept inside the premises, failing in their intent
due to the intervention of law enforcement officers. With the aggravating circumstance of having committed the act with violence against property. In ... the
In connection with the application for settlement of his fees
submitted on December 27, 2023 by interpreter SI for
the interpreting activity performed by him at the same hearing
December 27, 2023;
WHEREAS:
E. A. E. H. was under arrest by the State Police on the night between ... and ... at about ... approximately, in flagrante delicto crime for two incidents of aggravated theft (allegedly, the first consummated and the second attempted); the prosecutor by decree of ... (hours ...) ordered the direct presentation of the arrested person before the judge on the morning of the same ... , at 12.45 pm, for the validation of the arrest and the subsequent summary trial; in the same arrest report the same prosecutor noted that the defendant (born in ... ), although speaking the Italian language, did not understood it adequately and therefore needed an interpreter of Arabic language for the proceedings; the same police then proceeded to summon for the scheduled hearing (based on the operational protocols in place between the court, the Public Prosecutor's Office and the
Judicial Police) the interpreter Salah Ibrahim, a person on the roll
of expert witnesses of the Court of Florence, interpreters and translators section, in relation to the Arabic language;
at the hearing of ... the judge conferred the task of
interpreter to the aforementioned SI; the hearing was then held
with the assistance of the aforementioned interpreter: the oral report was held of one of the arresting officers, and the
said arrestee/defendant; at the outcome the arrest was validated
(limited to one of the contested incidents), a
noncustodial precautionary measure and the trial was instituted with summary trial with the above charge formulated by the
prosecutor; the trial was then adjourned for the request of
a defense term;
the same ... interpreter SI filed the application
for the settlement of the fee related to the work performed at the
aforementioned hearing;
at the subsequent hearing on January 12, 2024, the defendant,
equipped with a special power of attorney, requested that the case be proceeded with a fast track trial ("abbreviato), also in relation to the crime for which the arrest was not was validated; at the outcome of the discussion and deliberation, the judge pronounced judgment (conviction of the defendant for the facts ascribed, both qualified as attempted aggravated theft under Art. 625 no. 2 of the Criminal Code, to the final sentence of five months and ten days of
imprisonment and a fine of 90 euros);
this court must now rule on the aforementioned liquidation petition of ...; in order to be able to reach a correct decision, it appears to be
necessary the pronouncement of the Constitutional Court: it appears to be in fact, the constitutional legitimacy of the provision set forth in Article 4, paragraph 2, Law No. 319 of July 8, 1980, in the part in which - for vacations subsequent to the first - provides for a fee
lower than that provided for the first vacations, even in the case of
application of tariff forecasts not adjusted in accordance with Art.
54 Presidential Decree No. 115 of 2002, as well as of the provision of art. 50. paragraph 3, Presidential Decree no. Republic No. 115/2002, insofar as it provides that the tables relating to time-based fees identify the hourly fee possibly distinguishing between the first and subsequent hours, even in case of application of tariff forecasts not adjusted in accordance with of Article 54, Presidential Decree No. 115 o 2002; in the alternative, the cited rules appear to be of doubtful legitimacy with with regard to the payment of the interpreter for the activity of interpreting carried out in the interest of the nonnative defendant; that said, observes.
1. Relevance of the question
1.1 In the present case, the interpreter was subpoenaed
for the hearing on ...; the said interpreter arrived at the courtroom at
9:00 a.m. (as attested by the Clerk's Office). Although it does not appear documentally, it must be assumed - based on the operational practice of the judicial office and the Judicial Police - that said
interpreter was actually cited by the judicial police for the hours of
9,00. Moreover, the crime news notice - in which it was given
already acknowledged the identification of the said interpreter - was
registered at 10.09 a.m.; the prosecutor's submission decree
prosecutor reports the time “12.40”; SI was already present
in the courtroom at 9:00 a.m.; it is therefore evident how the interpreter was cited before the c.n.r. and the decree of
presentation, likely at the time when the public prosecutor at 4:35 a.m. was informed by the p.g. (polizia giudiziaria, "judiciary police") of the intervening arrest and verbally ordered that a summary trial be held (circumstances reported in the arrest report).
According to the minutes of the hearing, proceedings against E. A. E.
H . for which the interpreter had been cited, was being dealt with
concretely as of 4:04 p.m. (due to the processing in previously of additional proceedings with validation of the arrest and
subsequent summary trial); the hearing was concluded at
18,10.
Under current regulations this judge should
award the interpreter SI - in relation to the activity
professional services rendered at the hearing of .... for which he was cited for 9.00 a.m. and which ended shortly after 6.10 p.m. -
the total amount of 47.28 euros plus vat (liable to be
doubled pursuant to Article 4, paragraph 3, Law No. 319/1980 due to
urgency).
More precisely. since it is a service not expressly
provided for (nor similar to those provided for) in the tables approved by Ministerial Decree May 30, 2002, the fees must be
commensurate with the time spent and must be determined on the basis of the vacations (Article 4, paragraph 1, Law No. 319/1980).
Taking into account the duration of the hearing, the waiting time (based on the time for which the which the interpreter was cited) and the time required for the final fulfillments following the hearing (extraction and delivery of copies of the order. final interlocutions between defense counsel and the assisted), one five vacations (each equal to two hours) should be settled.
The fee for the first vacancy is 14.68 euros and that for the
subsequent ones is euro 8.15 per vacancy; the total fee for
five vacations is thus 47.28 euros.
The provisions of Article 4, paragraph 5, Law no. 319/1980 (according to which the judge may not award more than four vacations per day for each assignment), given that - as provided for in the
by the fifth paragraph of the same article - the assignment was
carried out in the presence of the judicial authority.
Ultimately, under the legislation censured here, one
the interpreter should be paid the fee of 47.28 euros (liable to be doubled for urgency).
If, on the other hand, the question raised were accepted, and thus for
each of the five vacations the honorarium was euro 14.68, one
the interpreter should be paid the fee of 73.40 euros (liable to be doubled for urgency).
1.2 It is considered necessary to take into account for the purposes of liquidation at vacations the period of time in which the professional had to wait for the actual calling of the trial. in particular from
from the moment (9:00 a.m.) when he had to appear following
of the summons by the public prosecutor's office: in fact. on the one hand on the one hand he was required to appear at the time for which he was summoned; on the other hand, this is still time that the same could not devote to other activities.
Even if only the time interval between 12:45 p.m. (the time set in the
decree of presentation of the prosecutor for the celebration
of the hearing) and 6:10 p.m. (time of the conclusion of the hearing), the question posed would still be relevant. One should in fact
consider the number of three vacations, by reason of which one
the amount of 30.98 euros should be liquidated; if, on the other hand, the issue raised was upheld, the interpreter should be paid
the honorarium of 44.04 euros.
On the other hand, it seems certainly to be discarded to consider for the for the purposes of liquidation only the time span of actual
conduct of the hearing (thus from 16.04), untenable, given that a professional, engaged for more than 9 hours, would thus be liquidated only one and a half vacations, rendering
de facto free professional services (the issue would be
still relevant).
1.3 As will be seen, the amounts provided for the liquidation
of vacations-initially determined as 10,000 lire for the
first vacancy, Lire 5,000 for subsequent vacations - were subject to
subsequent adjustment, pursuant to Article 10, Law No. 319/1980 (and then Article 2, Law No. 13/1991), by secondary sources, most recently most recently the ministerial decree of May 30, 2002.
To provide for and legitimize a (significant) gap between
the amount related to the first vacancy and the amount related to subsequent subsequent vacations, however, is the legal norm, specifically the norm censured here in Article 4, paragraph 2, Law No. 319/1980 (a similar provision, but in more general terms, is contained in Article 50, paragraph 3, Presidential Decree no.
115/2002), in the absence of which a differentiated provision by
by the ministerial decree should be deemed illegitimate.
Therefore, it seems possible for the Constitutional Court to intervene
on the point, in relation to the provisions of the legal norm.
1.4 It still seems useful to point out that in the Italian legal system the
measure to liquidate the compensation of the auxiliary of the judge (such as the interpreter) is pacifically a measure of a jurisdictional and not administrative in nature.
Thus, for example, the Court of Cassation in Judgment No. 44564
Nov. 11, 2008 (filed Nov. 28, 2008) set forth the following principle of law: “The measure of liquidation of compensation for the judge's auxiliary has a jurisdictional nature and, as such, cannot be revoked ex officio by the same judge that issued it."
In the same sense, the Constitutional Court expressed itself in
Judgment No. 192/2015 (filed Sept. 24, 2015): “The case law has long clarified that the procedure of liquidation of compensation to auxiliaries has a jurisdictional (which, moreover, conditions the very possibility of raising questions of constitutional legitimacy there:
Judgment No. 88 of 1970). For this reason, revocation is not permitted in self-protection of measures considered illegitimate or unfounded, having instead to proceed to the exercise of the means of appeal provided by law, and otherwise take note of the formation of
a procedural preclusion (subject, of course, to the possibility that
is the same law to provide for the possibility of revocation). ln other
terms, the liquidation orders do not remain in the availability of the magistrate who issued them, and are amendable only on (possible) appeal."
2. Not manifestly unfounded. Main issue.
2.1 The constitutional legitimacy of the provision of
in Article 4, paragraph 2, Law No. 319/1980. insofar as for the
vacations subsequent to the first provides for a lower fee than
that provided for the first vacations, as well as of the rule in
Article 50, paragraph 3 Presidential Decree no.
115/2002, insofar as it provides that the tables relating to the
time fees identify the hourly fee possibly
distinguishing between the first and subsequent hours.
2.2 A brief reconstruction of the regulatory framework seems useful.
Following the adoption of Presidential Decree Republic No. 115/2002, pursuant to its Article 50 the fees due to the magistrate's auxiliaries may be fixed, variable and time-based; the measure is established by tables approved by decree of the Minister of Justice, in consultation with the Minister of Economy and Finance, pursuant to Article 17,
paragraphs 3 and 4, of Law No. 400/1988. The tables must be
drawn up with reference to existing professional tariffs,
possibly concerning similar matters, balanced with the
public nature of the assignment. The tables relating to fees
on a time basis shall identify the hourly fee, possibly distinguishing
between the first and subsequent hours. the percentage increase for
urgency, the maximum number of hours per day and the possible
exceeding this limit for activities in the presence of the authority
judicial authority.
Article 299, Presidential Decree No. 115/2002 simultaneously provided for the repeal of Law No. 319/1980, with the exception of
except for the relevant article 4.
That article 4 - still in force - for what is relevant here provides that time fees are to be determined on the basis of the vacations.
The vacancy is two hours; there is then a diversified for the first vacazione and for subsequent vacations.
Specifically, the amounts initially provided for - liras 10,000
for the first vacancy, Lire 5,000 for the subsequent ones - have been
subject to subsequent adjustment, pursuant to Article 10, Law no. 319/1980 (and then Article 2, Law No. 13/1991), by Decree of the President of the Republic No. 103/1984, Decree of the President of the Republic No. 352/1988, of Ministerial Decree No. 5 December 1997 and, most recently, by Ministerial Decree May 30, 2002.
As a result of this latest regulatory intervention, the fee for the
first vacancy is now 14.68 euros. while the fee for subsequent
subsequent vacations is 8.15 euros.
According to the subsequent paragraphs of Article 4, Law No. 319/1980 the fee for vacations may be increased by reason of
urgency (doubled when for the completion of the operations
a time limit not exceeding five days is fixed; increased up to
to half when a time limit not exceeding fifteen is fixed
days); the fee for the vacancy is divided only by half;
after an hour and a quarter has elapsed the same is due in full. The
judge may not award more than four vacations per day for
each assignment, but this limitation does not apply to assignments
that are carried out in the presence of the judicial authority.
Pursuant to Article 52 Presidential Decree no. 115/2002 for services of exceptional importance. complexity and difficulty the fees may be increased up to double.
Article 54 Presidential Decree No. 115/2002 finally provides for a periodic adjustment of the fees (fixed, variable and time-based), in relation to the change in the index of consumer prices for families of blue and white-collar workers that occurred in the previous three-year period, by executive decree of the Ministry of Justice, in consultation with the Ministry of Economy andFinance. However, this rule has never been implemented: the last adjustment of fee amounts is that made by Art. 1, paragraph 1 of the ministerial decree of May 30, 2002 (still adopted on the basis of Article 10, Law No. 319/1980, since the Decree of the President of the Republic May 30, 2002, No. 115 would have come into in force only on the following July 1, 2002).
2.3 The Constitutional Court itself has already repeatedly
stigmatized “the deplorable failure of the administrative authorities" (Judgment No. 41 of 1996); in Judgment No. 192/2015, intervening in the matter of curtailment under Article 106-bis Decree of the
President of the Republic No. 115/2002 of the fees of the auxiliary
of the judge in the case of a defendant admitted to legal aid.
State, then noted how the fee base on the basis of which the
fees are to be calculated is “now seriously disproportionate
by default, even if one were to consider, as required by Article 50 of
Presidential Decree No. 115 of 2002, that the measure of the fees under consideration, in relation to the current tariffs professional rates, must be balanced (and therefore reduced) in relation to the public nature of the service required (reduction already implemented in the establishment of the starting values)."
As noted in the same judgment, moreover, the aforementioned
discipline also entails “system” repercussions, including the
concrete risk of the removal, from the circuit of the auxiliaries
of the magistrate, of those with the best professionalism.
These remarks - made in 2015 - are even more valid in 2024, given that, despite the passage of an additional nine years (in which inflation has reached remarkable levels), the inertia of the
persisted the inertia of the administrative authority; consequently,
the amounts of fees - which have remained unchanged for 22 years now - far from being simply affected by the public nature of the
service, are now derisory.
The Constitutional Court has intervened again in the matter in question: with Judgment No. 178/2017 in which, ruling on regarding the curtailment of the fees of the party's consultant in case of a defendant admitted to legal aid, it recognized - in constancy of non-adjustment of fees - a violation of the right to defense as well as the principle of reasonableness; with Judgment No. 166 of 2022 in which,
ruling in relation to the similar curtailments provided for in the
civil sphere, reiterated that “The adequacy of the remuneration
of the auxiliary, imposed by the principle of reasonableness, is
ensured by the relationship of proportionality between the tabular values of the fees and the corresponding free professional fees of the
market, albeit with a reduction, having regard to the publicistic connotation of the institution."
2.4 In this context, it seems to the writer that to suffer a prejudice are not only the professional. who would be entitled to be compensated with dignity for the work performed, but also and above all, the administration of justice and the defendant himself: the derisory size of the fees, in fact, entails the high likelihood of negative effects on the quality of the performance of the auxiliary, both in terms of a tendency to estrangement from the circuit of auxiliaries of the most'
qualified, as well as in terms of the appreciable risk that subjects underpaid do not lavish the necessary commitment in the performance of the assignment.
f already the fee provided for the first vacancy - 14.68 euros -
seems in this regard largely inadequate, that provided for the
subsequent vacations - euro 8.15 -, entailing an hourly fee of
just 4 euros gross, lower than that provided by collective bargaining
collective bargaining for much less skilled trades, is absolutely
insufficient to guarantee the necessary quality of performance.
If other remedies can be envisaged in the individual
professional to protect the relative compensation, conversely, the judge - to guarantee the proper conduct of procedural acts and thus
of “due process,” as well as to protect the defendant - can
only invoke the intervention of the judge of laws,
2.5 On the level of constitutional parameters, the provision for the
vacations subsequent to the first of a lower fee than that
provided for the first vacations seems to violate Articles 3 and 111
of the Constitution: in fact, it results in the unreasonable provision
of an absolutely inadequate fee, which undermines the guarantee
of the minimum quality necessary for the fairness of the trial.
Abstractly, the provision for the first vacancy of a fee
higher than that provided for subsequent vacations could
also be reasonable and not undermine the quality of the acts
trial proceedings. It is because of the values that concretely assume the fees-both because of the initial setting of modest amounts and because of the the subsequent failure to adjust for many years to increases in the cost-of-living increases - that the aforementioned discipline appears to be detrimental to the values constitutional values.
It could then be argued that the inadequacy of the fees
does not depend on a legislative defect, but rather on the inertia of the administrative authorities that should provide the aforementioned adjustment.
However, in the context of the aforementioned failure-which is not
now a contingent fact, but rises to a structural feature of the
system - the legislative provision for vacations subsequent to the first of a reduction in the fee seems to result in manifest unreasonableness, as held by the Constitutional Court in Judgment No. 192/2015 in relation to the provision in Art. 106-bis, Presidential Decree No. 115/2002 of the reduction by one-third of the fees payable to the auxiliary of the magistrate in cases of parties admitted to legal aid.
It is true that Article 106-bis, Presidential Decree no. Republic No. 115/2002 was introduced at a later time by the legislature, which “could not ignore how it dealt with fees which, in accordance with Article 54 of Presidential Decree No. 115 of 2002, would have
had to be periodically revalued"; where Art. 4, Law no. 319/1980 provided from the outset for a lower fee for the vacations subsequent to the first one.
This, however, is a distinguishing fact that does not seem diriment,
insofar as the unreasonableness of legislative provisions can also be determined by reason of supervening factors.
On the other hand, the subsequent failure of the administrative authorities to the duty to adjust the measure of the fees, pursuant to Article 54, Presidential Decree no. Republic No. 115/2002, was largely foreseeable, given that already in the force of Art. 10, Law No. 319/1980 at the end of more than three-year periods the measure of fees had not been adjusted.
Moreover, already in the aforementioned Judgment No. 166 of 2022 the Constitutional Court held that the circumstance (albeit
pointed out by the Avvocatura dello Stato in its observations)
that the rule then censured (Article 130, Presidential Decree
Republic No. 115/2002), unlike Art. 106-bis, Decree of the President of the Republic No. 115/2002 subject of the previous declarations of illegitimacy, was already included in the original body of Presidential Decree No. 115/2002.
3. Not manifestly unfounded. Subordinate question
3.1 The cited regulation appears to violate constitutional principles
in a further respect, with regard to the right of the accused non-native speaker to the assistance of an interpreter.
This right is provided for by the Constitution in Article 111, para.
3; it is also protected by international law. Article 111, paragraph 3 Const. merely generically provides for the right to the assistance of an interpreter.
3.2 More analytical is the regulation by the law European Union.
Of particular relevance is Directive 2010/64/EU of the
European Parliament and of the Council of October 20, 2010 on the right to interpretation and translation in criminal proceedings (which provided - as a deadline for transposition by the Member States member states - the date of October 27, 2013, and to which the Italian state has intended to implement by Legislative Decree No. 32/2014).
Thus states the relevant Recital No. 14: “the right
to interpretation and translation for those who do not speak or
do not understand the language of the proceedings is enshrined in Article 6 ECHR, as interpreted in the case law of the Court
European Court of Human Rights. This directive facilitates
the application of this right in practice. To this end, the purpose
of this directive is to ensure the right of suspected or accused persons to interpretation and translation in criminal proceedings in order to guarantee their right to a fair trial."
Article 2 of the directive provides, inter alia, “1. Member States shall
members shall ensure that suspected or accused persons who do not speak or do not understand the language of the criminal proceedings in question are assisted without delay by an interpreter in criminal proceedings before investigative and judicial authorities, including in police interrogations, and in all hearings, including the
necessary preliminary hearings. [...] 5. Member States shall ensure
that, in accordance with the procedures of national law, suspects
or accused persons have the right to appeal a decision that
declares the interpretation unnecessary and, where
interpretation has been provided, they have the opportunity to
challenge the quality of the interpretation as insufficient to
protect the fairness of the proceedings. [...] 8. The interpretation
provided under this article shall be of a quality sufficient to protect the fairness of the proceedings, in particular by ensuring that defendants or suspects in criminal proceedings are aware of the charges against them and are able to exercise their rights of defense."
Article 4 requires member states to bear the costs of
interpretation and translation resulting from the application of
Articles 2 and 3, regardless of the outcome of the proceedings.
Article 5 returns to the issue of the quality
of interpretation and translation: “1. Member States shall
shall take measures to ensure that the interpretation and
translation provided meet the quality required under
Article 2(8) and Article 3(9). 2. At purpose of ensuring adequate interpretation and translation service adequate and efficient access to such service, Member States shall undertake to establish a register or registers of independent and independent and duly qualified interpreters. Once established, such registers, where appropriate, shall be made available to lawyers and competent authorities [...]."
3.3 The European Convention on Human Rights - referred to
as seen by Directive 2010/64/EU of the European Parliament and
of the Council of October 20, 2010 - in Article 6 (Right to a fair
trial) thus provides, “1. Everyone has the right to have his or her
case to be heard fairly, publicly and within a reasonable time
reasonable time by an independent and impartial tribunal, constituted by law law, which is called upon to adjudicate disputes about his civil rights and duties or on the merits of any
criminal charges brought against him. [...] 3. In particular,
every defendant shall have the right to: [...] (e) be assisted free of charge by an interpreter if he or she does not understand or speak the language used in the hearing."
The European Court of Human Rights has stated that the
right to the assistance of an interpreter must be effective and
concrete. See, for example, the January 24, 2019 judgment in the case of Knox v. Italy (para. 182): “The assistance given in matters of
interpretation must enable the defendant to know what he is being
is charged with and to defend himself, in particular by providing the
court his version of the facts. The right thus enshrined must
be concrete and effective"; this judgment also concluded
there had been in the case examined a violation by the State
Italian State of Article 6(3)(e) of the Convention.
3.4 Article 2(8) of Directive 2010/64/EU states
therefore expressly that the interpretation provided must be of
sufficient quality to protect the fairness of the proceedings, in particular by particular by ensuring that defendants or suspects in
criminal proceedings are aware of the charges against them and
are able to exercise their rights of defense.
To this end, as specified in Art. 5. member states are
required to take measures to ensure that the interpretation and
translation provided meet the required quality. Furthermore, according to paragraph 2 of the same Article 5, member states must establish a register or registers of independent and
duly qualified.
3.5 The Italian legislation provides (Articles 67 and 69, Decreto
Legislative Decree No. 271 of July 28, 1989): that in each court there must be establish a register of experts divided into categories, one of which must be related to interpreting and translation; that the judge
tends to have to appoint as interpreter a person registered
in said register; that the application for inclusion in said register, directed to the president of the court, should be accompanied by, among other things by the titles and documents attesting to the special competence of the applicant.
However, these are provisions with extremely generic, lacking detailed data ensuring the actual competence of the persons registered in the register and thus ultimately the actual quality of the interpreting services rendered by them rendered. In particular, there are no specific requirements (e.g. example, the attainment of a bachelor's degree or postgraduate diploma in the field of conference interpreting) that such individuals must necessarily possess nor is there any provision for the necessary passing an interpreting test or examination.
Ministerial Decree No. 109/2023. which - with regard to the
civil trial - set the requirements for registration in the register
of technical consultants, in relation to the category of translators and
interpreters does not seem to have dictated a discipline in this regard
reassuring.
Nor is the judge, at the time of appointment, able to fully verify the competence of the interpreter (much less in the tight time frame in which the hearing under Article 558 of the Code of Criminal Procedure).
3.6 In this regulatory context, the issue of the compensation provided for the interpreting activity seems closely related to
that of the actual quality of the service, such as to ensure
the fairness of the proceedings.
As is easily guessed and as recognized by the same
Constitutional Court in Judgment No. 192/2015, in fact, the
provision of remuneration that is “seriously disproportionate by default" ends up leading to the removal from the judiciary of the most qualified professionals and the persistent willingness to take on the task of interpreter only of individuals who do not have the qualifications and/or skills to take advantage on the market of more fairly remunerated work opportunities.
3.7 Indeed, it is no coincidence that on numerous occasions, for the
hearings deputed to the validation of arrests, it is not found the
availability of any person to perform the task of interpreter.
It should be noted, for example, that there is a whole strand of case law of the Court of Cassation aimed at legitimizing the holding
of the validation hearing of the arrest of a person who does not
understand the Italian language even in the absence of an interpreter, recognizing the failure to find an interpreter as a case of
force majeure: “According to established orientation of the Supreme Court the absence of an interpreter, even if not imputable
to the arrested person, configures a hypothesis of force majeure that does not prevent the validation of the arrest, the judge of which must assess the formal regularity regardless of the interrogation not
possible (see Sect. 1, No. 41934, Oct. 14, 2009, ..., Rv. 245063;
Sect. 1, no. 20297 of May 8, 2008, ..., Rv. 239997: Sect. 4, no.
26468 of May 17, 2007, ..., Rv. 236995; Sect. 4, No. 3633 of 15
December 1998, dep. 1999, ... Rv. 212477; Sect. 5, no. 10517 of 8
February 2007, ... , Rv. 235990). It is the opinion of the college that this orientation deserves to be confirmed even after the amendments
introduced to Articles 143 and 104 of the Code of Criminal Procedure, by Legislative Decree 4 March 2014, No. 32 (Official Gazette March 18, 2014, No. 64), which has implemented Directive 2010/64/EU of the European Parliament and Council of October 20, 2010, on the right to interpretation and translation in criminal proceedings” (so Court of
Cassation, Sec. 4, Judgment No. 4649 of January 15, 2015 Rv. 262034 -
01, recalled - most recently - by the judgment Cass. Sec. 5, no. 36828
of 2023 and by the judgment Cass. Sec. 6, No. 4016 of 2024).
The existence on the point of so many rulings of legitimacy (and thus of so many occasions on which the Court of Cassation has had to address the issue) confirms the prevalence of the problem of finding
interpreters in the tight timeframe provided for validation hearings
of arrests (hearings in which, moreover, a particularly delicate
particularly delicate procedural activity, aimed at ascertaining - after
carrying out the interrogation of the accused - the legitimacy
of the arrest and the need to order the application of a measure
precautionary measure limiting personal freedom).
3.8 Like the latter problem, that of the actual quality of the interpretation depends - in this court's opinion - on the very modest amount provided by the Italian legislation for the remuneration of interpreters.
As we have already seen, this fee is commensurate with the time
spent by the interpreter and is determined on the basis of vacations
(each of two hours). The fee for the first vacancy is euro
14.68 and for each of the subsequent vacations is 8.15 euros (art.
4, Law No. 39/1980). So for the first two hours the fee
of the interpreter is 7.34 euros/hour; thereafter, compensation is 4.075 euro per hour.
This is a totally inadequate remuneration. which already
was such originally, but which has become all the more so as a result of of the failure to update the fees - after the decree
Ministerial Decree May 30, 2002 - by ministerial decrees (albeit
provided for in Article 54 Presidential Decree no. 115/2002), a situation already censured several times by the Constitutional Court
Constitutional Court, but nevertheless remained unchanged.
3.9 The existence of a close correlation between the quality
of interpretation and the remuneration that the state ensures
the interpreter for the work performed has been highlighted by numerous condon studies at the European level."
In particular, the study by the Irish Council for Civil Liberties
(ICCL) in collaboration with the Open Society Justice Initiative
(OS.JI) entitled Inside Police Custody 2 highlights (on page 28)
this connection, and how it is particularly relevant with
reference to the Italian case (1) .
The issue has been addressed
also by a study conducted by the Fundamental Rights Agency (Rights of suspected and accused persons across the EU: translation,
interpretation and information, Luxembourg 2016, page 56) (2) .
In the case of Italy, the level of remuneration is
particularly low. This is coupled with the absence of mechanisms provided by law to ensure adequate quality of interpretation.
3.10 It is therefore hoped that the Constitutional Court -
possibly, in case of doubt about the interpretation to be given
to the aforementioned Directive 2010/64/EU (whether the provisions of the directive should be interpreted as requiring member states to
create mechanisms aimed at ensuring a sufficient quality of the interpretation offered in the criminal trial to the accused, also
with regard to the remuneration provided for the interpreter, and therefore whether the provisions of the aforementioned directive should be interpreted in the sense that they preclude the existence of national legislation, such as the Italian one, which provides for a reduction in the remuneration for interpreters, after the first two hours of activity, to only 8.15 euros per each vacancy of two hours), subject to a preliminary reference to the Court of Justice of the European Union pursuant to Article 267 TFEU (3) - declare the unlawfulness of the provisions of Art. 4, par. 2,
Law No. 319/1980, insofar as, for vacations subsequent
to the first, provides for a lower fee than that provided for the
first vacancy even in case of application of forecasts
tariffs that are not adjusted in accordance with Article 54, Presidential Decree of the Republic No. 115/2002 (for conflict with the above-mentioned rules of the EU directive and thus with Article 117 Const.).
For the same reasons, it also censures the provision set forth in
Article 50, paragraph 3, Presidential Decree no.
115/2002, insofar as it provides that the tables relating to the
time-based fees identify the hourly fee possibly
distinguishing between the first and subsequent hours, even in the case of
application of tariff forecasts not adjusted in accordance with Art.
54, Presidential Decree No. 115/2002.
3. Possibility of conforming interpretation
Conforming interpretations of the norm do not appear to be feasible.
now censured to Articles 3, 111 and 117 of the Constitution, clear and
unambiguous being the literal datum.
It also seems appropriate to point out how it cannot make up for the
serious disproportion by default of the fees provided for the
the judge's auxiliary - and in particular the additional factor of
inadequacy related to the reduction of fees for vacations
subsequent to the first - through the possible increases provided for
by the system in relation to the urgency of the task (art. 4,
paragraph 3, Law No. 319/1980) or exceptional importance,
complexity and difficulty of the service (art. 52, Decree of the
President of the Republic No. 115/2002). These are in fact
possible expected increases depending on various factors, which
could still be due (for example, in the present case,
that relating to urgency, the interpreter having been cited during the
night of December 26-27, 2023 for the following
morning of December 27). On the other hand, the instrumental or
even illegitimate application of the rules, for the purpose of de facto adjustment
of fees, is precisely one of the possible “systemic” repercussions
consideration of which led the Constitutional Court to declare.
in Judgment No. 192/2015 the illegitimacy of Art. 106-bis,
Presidential Decree No. 115/2002, in the part in which
in which it does not exclude that the decrease of one-third of the amounts
due to the magistrate's auxiliary is operated in case of
application of inadequate tariff forecasts in accordance with Art.
54 of the same Presidential Decree. A fallout
system of the derisory magnitude of the fees currently provided for
consists precisely in the frequency with which statistically, in
practice, the exceptional importance, complexity and
difficulty of the service.
(1) In most of the countries in the study, a further issue related
both to the availability of interpreters and translators, and
quality, is the low level of remuneration, In Italy, for example,
interpreters are paid approximately five Euros per hour, and they
may not be paid for more than two years.
(2) Both studies are cited in the Commission's Report
to the European Parliament and the Council on the implementation of
Directive 2010/64/EU of the European Parliament and of the Council of
October 20, 2010, on the right to interpretation and
translation in criminal proceedings, COM(2018) 857 final.
(3) This court cannot directly raise the question
preliminary ruling. The Court of Justice, Tenth Chamber, in Case
C-783/21 by order of May 31, 2022, held that the
Italian criminal court - in the context of the procedure of
liquidation of the interpreter's fee - cannot raise
preliminary questions before the same Court on account of the
non-contentious nature of said procedure (the request for a
preliminary ruling on the occasion was therefore held to be
manifestly inadmissible).
P.Q.M.
Having regard to Article 134 Const. and 23 ff. Law No. 87/1953,
deemed of its own motion the question relevant and not manifestly
unfounded,
Raises a question of constitutional legitimacy of the provision of
in Article 4, paragraph 2, Law No. 319 of July 8, 1980, insofar as it
in which - for vacations subsequent to the first - it provides for a fee
lower than that provided for the first vacations, even in the case of
application of tariff forecasts not adjusted in accordance with Art.
54, Presidential Decree No. 115 of 2002; as well as
Of the provision of art. 50, paragraph 3, Presidential Decree no.
Republic No. 115/2002, insofar as it provides that the tables
relating to time-based fees identify the hourly fee
possibly distinguishing between the first and subsequent hours, even in
case of application of tariff forecasts not adjusted in accordance with
of Article 54, Presidential Decree No. 115 of
2002, for violation of Articles 3 and 111 of the Constitution;
in the alternative, raises a question of constitutional legitimacy
of the above rules, in the terms indicated above. limited to
To the cases of liquidation of the interpreter for the activity of
interpreting carried out in the interest of the defendant who is an alien, for
violation of Articles 111 and 117 of the Constitution (the latter
in relation to Articles 2 and 5 of Directive 2010/64/EU of the
European Parliament and of the Council of October 20, 2010 and Article 6.
ECHR).
Suspends the current judgment until the settlement of the
Incidental ruling on constitutional legitimacy.
Orders the immediate transmission to the Constitutional Court of the
this order and the records of the proceedings, including the
documentation attesting to the completion of the prescribed
communications and notifications referred to in the following paragraph.
Directs the clerk's office to serve this
Order to the defendant, defense counsel, prosecutor and
interpreter, as well as to the President of the Council of Ministers, and
for communication to the presidents of the Chamber of Deputies and the
Senate of the Republic and for the subsequent transmission of the
procedural file to the Constitutional Court.
Florence, April 3, 2024
The Judge: Attina'