Explaining its decision, the Supreme Court recalled that the criminal procedure law does not regulate the order of attraction of the translator, either it does not establish an unconditional obligation of the investigating judge, court, prosecutor, investigator, independently (in the absence of a corresponding petition from the party to the proceedings) to involve an interpreter.
At the same time, according to the requirements of Part 6 of Art. 22, part 3 of Art. 26 of the CPC of Ukraine stipulates that the court, while preserving objectivity and impartiality, creates the necessary conditions for the parties to exercise their procedural rights and fulfill their procedural obligations and resolves only those issues which are submitted to it by the parties.
The participation of an interpreter in a criminal proceeding is conditioned by the constitutional principle of equality before the law and the court, which, among other things, does not allow privileges or restrictions on linguistic grounds. This rule was reflected in Part 2 of Art. 24 of the Constitution of Ukraine and Art. 10 CPC of Ukraine.
In accordance with the principle of "equality of opportunity", according to which each party during the consideration of the case should have equal opportunities and neither party should have any significant advantages over the opponent, the rights of the accused in committing a criminal offense, as it is set in subparagraphs "a", " e "clause 3 of Art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, according to which the accused is entitled to:
a) be immediately and fully informed in a language understandable to him about the nature and cause of the prosecution against him;
e) if he does not understand the language used in court or does not speak it - to receive an interpreter's free assistance.
By the general rule and according to Art. 29 of the CPC of Ukraine, criminal proceedings are conducted in the state language. The prosecution side, the investigating judge and the court make the procedural documents in the state language. Investigator, court, prosecutor, investigator provide the participants of criminal proceedings who do not possess or do not have sufficient knowledge of the state language, the right to testify, to file a petition and submit complaints, to appear in court in the native language or another language they possess, using the services if necessary an interpreter in the manner prescribed by this Code (parts 1 and 3).
The involvement of an interpreter in conducting procedural actions is aimed at ensuring that persons who participate in criminal proceedings and who do not possess or do not have the proper command of the state language have the opportunity to use their own language or another language they possess (Article 18, Part 3, Article 42, p Part 9 of Part 1 of Article 56, Item 11 of Part 3 of Article 64-1, Clause 4 Part 1 Article 66 of the CPC).
However, according to the SC, the issue of compliance with Art. 29 CPC for the engagement of an interpreter should be decided on a case-by-case basis, whether this did not lead to a violation of the principle of "equality of opportunity" and the injustice of the trial as a whole in the sense of the provisions of art. 6 of the Convention.
In the present case, a translator was involved in a court of first instance during the criminal proceedings in response to a petition of a person. However, during the criminal proceedings by the court of appeals, neither the convicted person nor his counsel indicated the need for an interpreter to be involved. And from the audio recording of the court hearing in the court of appeals it is seen that the person had no difficulties in understanding the Ukrainian language, he himself expressed his opinion on the appeals, and also spoke in court debates and with the last word.
Therefore, in the opinion of the Supreme Court, the Court of Appeal did not have any objective grounds for engaging an interpreter on his own initiative (ruling of 11.06.2019 in the case № 219/5455/16).
