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On April 19th 2010 at 12:15pm, Ms. Hoyos was placed in police custody for 24 hours in Monaco (art.60-4 of the code of penal procedure) under the control of the prosecutor general (art.60-1, 60-3). At 12:30pm, she requested to speak with a lawyer (art.60-9). Despite her request she was interrogated until her bar appointed lawyer arrived. After meeting with her lawyer, she was subject to a body search (art.60-2) and had her bag searched without her lawyer present. Then, she was further interrogated without any legal assistance.
On April 20th 2010 at 12:15pm, she was informed that a 24h warrant of further detention was granted at 11:40am by a judge at the request of the prosecutor general (art.60-4). After meeting with her counsel, she was again interrogated without any legal assistance.
On April 21st 2010 at 11:00am, she was interrogated without her lawyer by the prosecutor general (art.261) who issued an “arrest warrant” for a 4 month pretrial detention (art.162). Then, she was interrogated without her lawyer by an investigative judge (art.166).
On August 25th 2010, Me Regis Bergonzi filed a motion to dismiss to the investigative judge. On September 1st 2010, the investigative judge ruled that he was not authorized by law to rule on the lawfulness of the police custody (art.209). On September 20th 2010, the appeal court confirmed the ruling. On March 30th 2011, the supreme court (cour de revision) refused to rule on the appeal of the Ms. Hoyos.
On July 23rd 2011, she filed an application to the European Court of Human Rights arguing that the control of the police custody by the prosecutor general, and the fact that she was not brought before a judge were violations of article 5-3 of the Convention. She added that the absence of legal assistance during interrogations, of notice of the right to remain silent, the lack of access of her lawyer to her police file, and the purchase of her prosecution file, were violations of articles 6-1 and 6-3 of the Convention. Furthermore, according to her, the refusal of the supreme court to rule was a violation of article 6-1.
On January 23rd 2012, the application was communicated to the representative of Monaco with questions to be answered within 16 weeks. The applicant is represented by Me Regis Bergonzi (Monaco).
On August 25th 2000, Ms. Horvath, an Hungarian citizen was interrogated in Dutch and English by Dutch speaking police officers of the Ghent police without the assistance of a sworn interpreter (art.47 bis of the code of criminal instruction). On March 27th 2001, she received a summon in Dutch from the prosecutor of the king of the Belgians.
On February 14th 2002, she was condemned in absentia by the tribunal of Ghent. On November 9th 2004, the court of appeal of Ghent condemned her in absentia.
On March 7th 2005, she was assisted by a Hungarian/Dutch interpreter to give her statement to the court during an appeal hearing (art.31 law June 15th 1935). It is unknown if the she was assisted by the interpreter during her meetings with her lawyer and if the key prosecution files and judgments were translated in Hungarian. On January 17th 2006, the court of appeal of Ghent found her guilty and sentenced her to the same penalty as the judgment of the tribunal of Gent. On September 18th 2006, her appeal to the supreme court (Cour de cassation) was rejected (case no P060298N).
On January 26th 2007, Ms. Horvath filed an application with the ECHR on the ground that she was not “informed promptly, in a language which she understood and in detail, of the nature and cause of the accusation against her” in violation of article 6-1-a) of the Convention. She added that she was interrogated by police officers without an interpreter in violation of article 6-1-e) of the Convention.
On January 24th 2012, Judges Berro-Lefèvre (Monaco), Jočienė (Lithuania), Karakaş (Turkey), Popović (Serbia), Raimondi (Italy), Sajó (Hungary), and Tulkens (Belgium) ruled unanimously her application inadmissible. They found that Ms. Horvath was informed “of the nature and cause of the accusation against her” because she submitted a brief in Dutch to the appeal court of Ghent and didn’t request during the appeal hearing for a translation in Hungarian of the summon.
The 7 Judges of the 2nd section also concluded that the allegation of violation of article 6-1-e) was inadmissible (art.35-1 of the Convention) on the ground that the applicant didn’t complain to the Belgium supreme court about the lack of interpreter during police interrogation. But according to the judgment of the supreme court (case no P060298N 7.8.9), the applicant explicitly raised this issue. Interestingly, the same section of the Court found an allegation of violation of article 6-1-e) admissible even though the applicant didn’t complain to the Turkish supreme court about the lack of interpreter during police interrogation (Judgment Şaman v. Turkey (35292/05) .25).
On October 26th 2010, the directive 2010/64/EU on the right to interpretation and translation in criminal proceedings was published. It establishes for suspect or accused persons, the right to free interpretation during police interrogation (art. 2.1), meetings with lawyer (art. 2.2) and hearings (art.2.1). It also confers them the right to free translation of any detention decision, any charge or indictment, any judgment (art.3.2) and other “essentials documents” (art.3.1) as well as the right to an effective remedy to challenge refusal to provide free translation (art.2.5) or free interpretation (art.3.5).
The Kingdom of Belgium have to bring into force the law necessary to comply with this directive by 27 October 2013 (art.9).